Terms and Conditions
1. “Company” means Lotuscede (Pty) Ltd t/a Lotuscede, or its successor.
2. “Customer/s” means the party who or which purchases the Products from the Company, and includes the Customer’s representatives, successors and permitted assigns, and shall also include, where applicable, any user of the Website.
3. “CPA” means the Consumer Protection Act, 68 of 2008.
4. “Contract” means any contract or agreement arising out of the acceptance of any offer, whether that contract arises out of an offer made by the Company and accepted by the Customer, or an offer made by the Customer and accepted by the Company.
5. “ECTA” means the Electronic Communications and Transaction Act 2 of 2002.
6. “Products” means the products sold to the Customer by the Company which form the subject matter of the Contract, including but not limited to sex toys for women and men, lubricants, body oil, latex clothing for women and men, leather bondage gear and clothing for women and men.
7. “Website” means www.lotuscede.co.za.
8. This document contains the standard terms and conditions of sale on which the Company sells the Products or provides the services to Customers.
9. These terms and conditions shall be binding between the parties for all current and future online sales of the Products, unless modified by the Company or the parties have signed new terms and conditions.
10. Nothing in this agreement is intended to or must be understood to unlawfully restrict, limit or avoid any rights or obligations, as the case may be, created for either of the Customer or the Company in terms of the CPA.
11. The Company (Registration Number: 2014/117965/07) is in the business of specializing in intimate lifestyle products.
12. The Company’s directors are James William Rautenbach and Dominique Stephanie Myburgh.
13. A representative of the Company can be contacted at firstname.lastname@example.org.
14. The Website is run by James William Rautenbach and Dominique Stephanie Myburgh
15. These standard terms and conditions of on-line sale form the entire agreement between the parties. No other terms or conditions, whether express, tacit or implied shall apply to a Contract irrespective of the circumstances under which the Contract arose. No alteration or variation of these terms and conditions shall be of any force or effect unless and until recorded in writing and approved by the Company. All provisions and the various clauses of this Contract are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.
16. These standard terms and conditions of on-line sale may be periodically modified and/or amended by the Company at any time and in their sole discretion, and it is the Customer’s responsibility to ensure that they are familiar with the updated and/or amended terms. The Customer’s continued use of this Website signifies the Customer’s acceptance of these terms and conditions and any updates and/or amendments thereof.
17. Prices of the Products are displayed with each Product on the Website and may be withdrawn and/or altered by the Company at any time and for any reason whatsoever.
18. All prices quoted on the Website exclude VAT, surcharges and delivery costs, unless otherwise stated therein.
19. Where a Product is offered on discount or at a particular price the Company will not be held liable where a sale cannot be concluded because such discount or particular price can no longer be offered to the Customer as the purchase price of the Product has increased, for whatsoever reason, between the period of adding a Product to a shopping trolley and the Customer attending to the checkout and payment of the Product.
20. The purchase price of the Product does not include batteries, where applicable, unless otherwise specifically stated on the Website.
Acceptance of Contract
21. Any Product selected by the Customer may be placed in a shopping trolley. Placing Products in a shopping trolley does not constitute a contract of sale between the parties and the Company cannot be held liable for any reason whatsoever if the Product is not available when the Customer wishes to checkout and complete the purchase process. The Company furthermore reserves the right to unilaterally remove a Product from a Customer’s shopping trolley should the selected Product no longer be available or in stock.
22. A contract shall come into existence and effect if and when a credit card authorization is received from the issuing bank alternatively a deposit received into the Company’s nominated bank account resulting from an electronic funds transfer within 5 (five) days from the completion of the checkout process, and the Company has send the Customer an electronic mail confirming that the Customer’s order has been accepted and the Product dispatched.
23. The Customer’s order or acceptance of a price quoted on the Website is binding on the Customer and in the event that the Customer cancels the order, the Company may charge the Customer a reasonable cancellation fee, which shall not be less than 20% (twenty percent) of the handling fee, taking into account expenses incurred by the Company and commitments made by the Company.
24. Notwithstanding what is contained above, the Customer may not cancel an order where that order relates to Products that the Company has been expressly or implicitly required or expected to procure, create or alter specifically to satisfy the Customer’s requirements.
25. The Customer acknowledges that it is aware that the Company’s sales/ customer service persons, where applicable, have no authority to vary these standard terms or conditions of on-line sale and the Company assumes no liability and shall not be bound by any statements, warranties or representations made by such sales/customer service persons save as expressly stated in writing and signed by a director of the Company, duly authorized.
26. The Company may cancel any orders made by the Customer, in part or in full, without reason and shall be liable only to refund to the Customer monies already paid in respect to the cancelled Product.
27. While the Company makes every effort to ensure that the information and Product listing on their Website is correct and accurate the Company will not be held liable for any inaccuracies and will endeavour to inform the Customer of any delays or Products out of stock.
28. In amplification of the provisions of 27, all weights, measures and similar descriptions of any Product displayed on the website are approximate and are provided for convenience purposes only. The Company shall make all reasonable efforts to ensure the accuracy of Product descriptions, including colours of the Products however the Company will not be liable for any errors in Product description and pictures, including inaccuracies occasioned by the Customer’s computer system.
29. The stock quantities of each individual Product on offer for sale on the Website are limited and the Company endeavours to take all reasonable steps to remove a Product from the Website or indicate on the Website accordingly when a specific Product is out of stock.
30. Should a Product be sold to the Customer that is out of stock, the Company will be liable to refund the Customer where the Company is unable to fulfil the order of the Product at the advertised purchase price. The Company shall inform the Customer of any change in the delivery date where a Product is out of stock but the order is able to be fulfilled as aforementioned.
31. Payment of the purchase price of the Products, including VAT, delivery and any other applicable costs, shall be made to the Company without deduction or set-off upon order of the Products by the Customer and upon checkout on the Website.
32. The Products shall not be delivered to the Customer without full payment of the purchase price having been made by the Customer to the Company and the checkout purchase process being completed.
33. Ownership in the Products shall not vest in the Customer and shall remain with the Company until such time as the full purchase price, including all and any additional and applicable costs, have been paid by the Customer to the Company.
34. Payment may be made via:
34.1 Visa or Mastercard credit cards or debit cards
34.2 made by bank transfer into the Company’s nominated bank account, the details of which will be provided upon the request of the Customer.
35. Should the Customer request to make payment by bank transfer then such payment must be reflected in the bank account of the Company within 5 (five) days of the online checkout purchase process having been completed. Should the purchase price not reflect in the Company’s nominated bank account as aforementioned then the Company may sell the Product to a third party in order to defray costs and the Customer shall have no claim whatsoever against the Company in such circumstances. This shall not release the Customer from liability and/or damages in respect thereof, as the case may be.
36. Credit card transactions will be acquired for the Company via Payfast (Pty) Ltd (“Payfast”). Payfast uses the highest level of encryption currently available, and no credit card details are stored on the Website. The Customer may visit Payfast’s website at http://www.payfast.co.za to view their security certificate and security policy.
37. The Customer’s personal details will be stored by the Company separately from the Customer’s credit card details which are entered by the Customer on the Payfast secure website.
38. The Company will not be held liable for any security breaches on the Customer’s electronic device, including, without limitation, personal computer and tablet, for any reason whatsoever.
Delivery of Products
40. Delivery of the Product shall take place at the address specified by the Customer on the Website and the Customer shall be deemed to have accepted the Product upon their delivery to such address, we cannot deliver to a post box. The Customer shall make all necessary arrangements to take delivery for the Product whenever they are tendered for delivery.
41. The Customer undertakes to notify the Company forthwith in writing of any change in address timeously.
42. Deliveries will take place during normal business hours from Monday to Friday, unless otherwise agreed between the parties. After the Customer has paid and checked out an email-confirmation will be sent giving details of what has been ordered. It will also give an estimated date of despatch of the order. Please note the Company can only accept changes to an order up to 7 days after it has been placed.
43. All orders to be delivered within South Africa will qualify for free delivery.
44. The Customer agrees that the signature of the Customer, any agent, contractor, sub-contractor or employee of the Customer on the Company’s official trip sheet / delivery note / invoice / waybill, or the delivery note of any authorised independent carrier will constitute delivery of the Product purchased. Delivery shall furthermore be deemed to have taken place against proof of posting if the Product is posted to the Customer or delivery to the South African transport services or road carriers if the Products are railed or transported by the Company to the Customer in this manner. The post office / South African transport service / road carrier shall act as an agent of the Customer.
45. Despite the above, the Customer acknowledges that the delivery dates given by the Company in advance are estimated. The Company will use its best endeavours to ensure that delivery is completed as soon as is reasonably possible after the estimated delivery date. Notwithstanding the aforegoing, the Company shall not be liable for failure to perform or delay in performance hereunder resulting from any cause beyond the Company’s control, including fire, labour difficulties, transportation difficulties, interruptions in power supply (including but not limited to what may be termed “load shedding” or “black-outs”) and delays in usual sources of supply, major changes in economic conditions, breakdown of machinery or any cause beyond the Company’s control, and whether caused by negligence or otherwise.
46. If Products, when ordered together, have various delivery dates then the date of the Product which is latest in time shall be the estimated date of delivery of all the Products specified in the single order, unless the Customer requests part delivery of certain Products, subject to additional delivery fees.
47. If the Company is unable to deliver the Product to the Customer for reasons beyond its control, then the Company shall be entitled to place the Product in storage until such time as delivery may be affected and the Customer shall be liable for any expense associated therewith, including, without limitation, storage costs.
48. Risk in and to the Products shall pass to the Customer upon delivery.
49. The Customer shall immediately, upon receipt of the Products from the Company, inspect the Products and the Customer must inform the Company of any error in units delivered (quantitative) occasioned by the Company by way of written notice, to be received by the Company within 7 (seven) days of receipt of the Product by the Customer. Should the Customer fail to notify the Company of any claim the Customer may have in terms hereof within the specified 7 (seven) day period such failure shall constitute a complete waiver of any such claim.
50. Any of the Products delivered to the Customer in error, as referred to in clause 49 above, will only be considered for return by the Company upon presentation of a receipt and provided that such Products are undamaged, unopened, have not been tampered with in any way and are not defaced in any way.
51. If the Customer, due to some fault of its own, cannot accept or should it request the Company in writing to suspend or delay delivery of the Products, the Company reserves the right to claim any additional costs, including storage costs, incurred by the Company from the Customer.
52. Subject to the provisions of sections 42 and 44 of ECTA the returns policy of the Company is as follows:
52.1 Products sold may only be returned within 7 (seven) days of delivery date, upon presentation of a receipt and on condition that they are returned in their original condition undamaged and unopened;
52.2 Notwithstanding what is contained above and taking into account the nature of the Products sold by the Company, the Customer may not return Products that have been discounted, are on a sale, that the Company has been expressly or implicitly required or expected to procure, create or alter specifically to satisfy the Customer’s requirements or intimate Products such as underwear, intimate toys and intimate jewellery;
52.3 The Customer shall return the Product at its own expense and be liable for all courier or similar fees involved. These fees will be deducted from the purchase price of the Product if a refund is required.
52.4 In the instance of an exchange of Product, the Customer will be liable for the courier fees in returning the Product and resending the replacement Product to the Customer.
53. Refunds, where applicable, on credit cards will reflect on the credit card used to purchase the Product. Bank transfer refund, where the Product was purchased with a debit card or via an electronic funds transfer will be processed within a reasonable period after all the necessary banking details of the Customer have been verified.
54. Gift vouchers purchased on the Website are valid for a period of 6 (six) months and may not be exchanged for cash or cash alternatives.
The passing of risk, ownership of and title to the Products shall remain vested in the Company until the purchase price, and any other amounts owing to the Company in respect of the Products have been paid in full and without set- off, on which date ownership of the Products will be deemed to be transferred to the Customer.
Users over the age of 18 years
55. The Company does not intend the Website to be used by or Products to be sold to persons under the age of 18 (eighteen) years. The Consumer acknowledges that the Products sold on the Website are of a nature intended for persons over the age of 18 years. The Company may refuse to sell Products to Customers who are under the age of 18 (eighteen) years.
56. Other than the representations stated herein or the warranties as provided for in the CPA and ECTA, where applicable, the Customer acknowledges that the Company has made no representations or warranties, implied or otherwise, to the Customer in connection with the Contract prior to the Contract being made.
57. In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, the parties agree that the Customer shall have no claim against the Company for any loss or damage, of any nature whatsoever, occasioned by any defect in any Products supplied, or any failure to provide adequate instructions in respect of any hazards that might arise from the use or incorrect use of the Products, or the Customers use or inability to use any Product sold on the Website, save to the extent that the Customer is a Consumer for the purposes of the CPA and such loss or damage is contemplated in section 61 of the CPA, and provided that nothing in these terms and conditions must be construed as in any way limiting the rights of the Company to raise such defences as may be available to it at common law or in terms of any statute.
58. Notwithstanding the provisions set out herein, in the event that the Company provides advice regarding the application of the Products at the request of the Customer, the liability of the Company in respect of the non-suitability of the Products for the purpose for which they are used will be limited to the selling price of those Products. The Company shall under no circumstances whatsoever be liable for any damages, directly or indirectly caused, or consequential loss of whatsoever nature.
59. Furthermore, in the event of the breach of these standard terms and conditions of online sale by the Company, the Customer’s remedies shall be limited to damages which shall under no circumstances whatsoever exceed the purchase price of the Product.
60. The Customer hereby indemnifies and holds the Company harmless against any losses, expenses, costs or damages of whatsoever nature incurred by the Customer arising from any wilful misconduct or gross negligence of the Company.
61. Save for the provisions of section 43(5) and 43(6) of ETCA, neither the Company, nor its duly authorised agents or representatives shall be liable for damages, loss or liability of any nature whatsoever and howsoever arising, whether directly or indirectly, through the use or inability to use this Website, the services or content provided herein. The Company furthermore makes no representation or warranties whatsoever that the content and/or the technology available on this Website are free of errors, omissions, viruses of any nature or free of interruption.
62. Any and all information on this Website should not be regarded as professional advice or the official opinion of the Company and it is the Customer’s responsibility to ensure the correctness of any of the content displayed on the Website.
64. Should the Customer fail to make payment upon due date of any amount due and owing, or commit any other breach of the terms of a Contract / agreement, the Company shall be entitled, at its option without notice and without prejudice to any other right which it may have, including the right to claim damages arising out of the breach or the termination of the Contract / agreement, to cancel such Contract / agreement forthwith, and/or to declare all amounts owing by the Customer to be immediately due and payable and/or to suspend the carrying out of any of its then uncompleted obligations until payment is made.
65. No relaxation which the Company may have permitted on any occasion in regard to the carrying out of the Customer’s obligations shall prejudice or be regarded as a waiver of the Company’s rights to enforce those obligations on any subsequent occasion.
66. No right or license is hereby granted to any user and/or Customer of this Website, whether juristic or otherwise, to any trademark, mark, branding, design or any other intellectual property of the Company whatsoever.
67. The material located on the Website, including, without limitation, text, logos and images, may not be copied, reproduced, republished, downloaded, posted, broadcast or transmitted in any way whatsoever except for the Customer’s personal non-commercial use.
68. The Customer agrees not to adapt, alter or create any derivative work from any of the Company’s material contained on the Website, nor to use any of the Company’s content for commercial use in any way whatsoever, without the Company’s prior written approval.
69. The Company shall take all reasonable steps to protect the personal information of the Customer collected by the Company through the Website. For the purposes of this clause “personal information” shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (“PAIA”).
70. The personal information will not be made available to any third party without the Customer’s consent or unless required in legal process or proceedings or to protect the rights, property or safety of the Company or other parties. The Customer acknowledges that the Company will supply a third party with the Customer’s name, delivery address and contact number in order to effect delivery of any Product ordered by the Customer on the Website.
71. The Customer agrees that the Company may use its confidential information to communicate with the Customer from time to time, unless otherwise specified by the Customer in writing.
72. It is recorded that this site may collect cookies and/or make use of tracking. Any user of the Website, where such user browses the Website at any time without submitting personal details to the Company and/or purchasing a Product from the Company, accepts that the Company may collect the user’s computer’s IP address in order to, among other things, measure the number of visitors to the Website and for marketing purposes. The Company is under no obligation to protect this information and may make use of this information without limitation.
73.The Customer may not actually or purportedly cede, assign or otherwise alienate any rights or obligations which it may have in terms hereof or in terms of any Contract with the Company, without the Company’s written consent, which consent will not be unreasonably withheld.
Notices and Domicilium
74. The parties hereto select as respective addresses for service of any documents the addresses set out in any order contemplated in terms hereof.
75. Any written notices in respect of this contract shall be sent by email and shall be deemed to have been received on the day of transmission.
76. This Website, these online terms and conditions, the Contract and any contract shall be subject to the laws of the Republic of South Africa.
77. In terms of Section 45 of the Magistrates Court Act of 1944, as amended, the Customer hereby consents to the jurisdiction of the Magistrates Court having jurisdiction in terms of Section 28 of the said Act in respect of any action to be instituted against the Customer by the Company in terms of the Contract or this document. It shall nevertheless be entirely within the discretion of the Company as to whether to proceed against the Customer in such Magistrates Court or any other court having jurisdiction.
78. In the event of the Customer committing any breach of the Contract or in the event of the Company being required to take any legal action, the Customer agrees and undertakes to pay the Company’s legal costs as between attorney and own client including collection commission, tracing fees, valuation charges, transport costs and other expenses in connection therewith.