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Terms Of Use

INTRODUCTION

These Terms are the general terms of the relationship between Bike & Saddle and you, the Customer. These Terms cover the use of this web site, including any other marketing material of Bike & Saddle. By visiting and using this web site, each Customer accepts and agrees to these Terms. These Terms also cover any transactions (including any transaction carried out electronically using a computer or network, or in person) where Bike & Saddle provides to a Customer who receives Goods or Services. The commercial terms of any transaction between Bike & Saddle and Customer will be contained in an Order that will incorporate these Terms. The Order will prevail if there is a conflict of meaning. Nothing in these Terms obligates either party to enter into any Orders.

DEFINITIONS AND INTERPRETATION

Definitions. For purposes of the Agreement:
“Affiliate” means any parent company, subsidiaries, joint ventures, or other companies under a common control;

“Agreement” means the agreement between Bike & Saddle and Customer, consisting of these Terms and any Orders the parties enter into;

“Customer” or “you” means any person who visits this web site or concludes an Order;

“ECT Act” means the Electronic Communications and Transactions Act 22 of 2002 of South Africa;

“Effective Date” means in respect of each Order, the effective date stipulated in each Order, in the absence of which it will be the date the Order is accepted by Bike and Saddle;

“EULA” means an end user license agreement;

“Fees” means the fees, charges, or purchase consideration that Customer will pay to Bike & Saddle in respect of Goods and Services provided by Bike & Saddle under Orders;

“Goods” means any goods Bike & Saddle provides to Customer, under Orders;

“Order” means a goods or services order agreed to and signed by both the parties describing the specific Goods or Services to be provided by Bike and Saddle to Customer;

“Services” means any services Bike and Saddle provides to Customer, under Orders;

“Service Levels” means the levels according to which Bike and Saddle will provide each Service as agreed by the parties;

“Sign” means the handwritten signature or advanced electronic signature of the duly authorised representative of a party;

“Signature Date” means the date of signature by the party signing last;

“Terms” means these terms, consisting of:
1. these customer relationship terms; and
2. any other relevant specific terms, policies, disclaimers, rules and notices agreed between the parties, (including any that may be applicable to a specific section or module of this web site or any specific Goods or Services);

“Bike and Saddle” means the Bike and Saddle identified on this web site; and

“Writing” means any mode of reproducing information or data in physical form and includes hard copy printouts, handwritten documents, fax transmissions, but excludes information or data in electronic form.

Definitions in the Order. Words defined (or assigned a meaning) in the Order will have that meaning in these Terms, unless the context clearly indicates otherwise.

Interpretation. A word defined or assigned a meaning in the Agreement will start with a capital letter. All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended from time to time. A reference to a person includes a natural and juristic person and a reference to either party includes the party’s successors or permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.

Conflict. If there is a conflict of meaning between these customer relationship terms and any other relevant specific terms, policies, disclaimers, rules and notices agreed between the parties, the specific terms will prevail in respect of your use of the relevant section or module of the web site or Goods or Services.

TERM

These Terms commence on acceptance and continue until terminated.

USE OF THIS WEB SITE

License to use this web site. Bike and Saddle grants each Customer a limited, revocable license to use this web site subject to the Agreement. Any person wishing to use this web site contrary to the Agreement must obtain Bike and Saddle’s prior written consent.

Framing. No person, business, or web site may frame this web site or any of the pages on this web site.

Linking. A Customer may link to the web site only by linking to the home page [www.bikeandsaddle.com] of this web site. Bike and Saddle prohibits the Customer from “deep linking” to any other pages in a manner that would incorrectly suggest endorsement or support of the Customer by Bike and Saddle or suggests theCustomer is the owner of any intellectual property belonging to Bike and Saddle.

Spiders and Crawlers. No person, business, or web site may use any technology (including spiders or crawlers) to search and gain any information from this web site.

MODIFY

Bike and Saddle may modify, suspend, or discontinue providing this web site or any Goods or Services (with or without notice) and will not be liable.

USER ACCOUNTS

Passwords and Security. Only a registered Customer can make offers. Each Customer is responsible for keeping their password secure. Each Customer is solely responsible and liable for activities that occur under their account. The Customer authorizes Bike and Saddle to act on any instruction given under the Customer’s account, even if it transpires that someone else has defrauded both Bike and Saddle and Customer, unless Customer has notified Bike and Saddle prior to Bike and Saddle acting on a fraudulent instruction.
the Customer.

Customer accounts registered by bots or other automated methods are not permitted.

Each Customer must provide their full legal name, a valid email address, and any other information requested in order to complete the registration process. One person may only use each Customer’s login – Bike and Saddle does not permit multiple people to share a login.

Deactivation or deletion by Customer. A Customer may not deactivate or delete its Customer’s account, for any reason.

ORDERS

Invitation to do business. The marketing of the Goods or Services by Bike and Saddle is merely an invitation to do business or for a Customer to make an offer to procure Goods or Services. The parties only conclude a valid and binding Order when Bike and Saddle accepts the offer made by the Customer. Unless proven to the contrary, Bike and Saddle only accepts an offer relating to Goods, when Bike and Saddle ships the Goods. If only part of the Goods relating to an offer are shipped, Bike and Saddle only accepts that portion of the offer. Unless proven to the contrary, Bike and Saddle only accepts an offer relating to Services, when Bike and Saddle begins providing the Services. Bike and Saddle may accept or reject any offer. If Bike and Saddle does not accept any offer, then Bike and Saddle will refund any monies already paid by Customer as stipulated in its cancellation policy published at .

Cancel. Bike and Saddle may cancel any Order at any time in its absolute discretion. Bike and Saddle will refund any monies already paid by Customer.

Fees. Despite Bike and Saddle’s best efforts, the stated Fees may be incorrect. Bike and Saddle will confirm the Fees for any Goods or Services when Bike and Saddle accepts the Customer’s offer.

Third party terms. If a third party supplies or delivers any Goods or Services directly to you, third party terms or conditions may apply. Customers are solely responsible to ensure they understand and agree to those terms.

Time and place. The parties conclude the agreement between them at the time when a duly authorised representative of Bike and Saddle accepts the relevant offer and at the place where Bike and Saddle has its head office. Bike and Saddle does not need to communicate the acceptance of the offer to Customer.

Orders. The Terms in effect at the time the Customer makes an offer will govern the Order. Each Order will create a separate agreement. Despite that, Bike and Saddle may consider the breach of any one Order to constitute a breach of any or all Orders.

Stock availability. Bike and Saddle may not always have the Goods on which Customers make offers in stock. Customers may cancel the offer or make another offer on the part of the Goods that are in stock.

CAPACITY OF THE CUSTOMER
Each Customer represents and warrants that he or she (and any person who places an Order on Bike and Saddle) is:
1. old enough under applicable law to enter into the Agreement;
2. is legally capable of concluding any transaction;
3. possess the legal right, full power, and authority to enter into the Agreement;
4. is authorised to use the password required for any account; and
5. all information the Customer submits to the Bike and Saddle on this web site is true, accurate, and correct.

If the Customer is younger than 21 years of age, the Customer warrants that the Customer has the consent of its legal guardian to enter into the Agreement or that the Customer has obtained legal status in another manner.

GOODS

Sale. Bike and Saddle sells to the Customer who purchases the Goods on the terms of the Agreement.

Countries. The Customer may only make offers for Goods for delivery to the countries listed on the web site. If the Customer’s shipping or billing address is not listed as a choice under the country category on the web site, the Customer must not make an offer. Bike and Saddle is only able to sell into the countries listed, and Bike and Saddle is only able to ship to those countries.

Shipping and packing. Bike and Saddle will display all available shipping options and charges before the Customers completes the Customer’s purchase. Unless otherwise agreed in writing, Bike and Saddle will select the specific mode of shipment of the Goods and the cost of shipment will be for the Customer’s account. Bike and Saddle will pack the Goods in accordance with Bike and Saddle’s packaging specifications for the Goods and the cost of packaging will be included in the Fees.

Time until dispatch. Once Bike and Saddle receives an offer, Bike and Saddle will endeavour to dispatch the Goods as soon as reasonably practicable (which may be longer than 30 calendar days) to the address specified in the offer. Bike and Saddle will try to adhere to the estimated delivery dates but accepts no liability for failing to do so. The Customer may not withdraw any offer due to a delay in delivery.

Risk and ownership. All risk of loss or damage to the Goods will pass to the Customer upon physical delivery of the Goods to the Customer’s delivery address. Ownership in the Goods will only pass to the Customer upon the payment in full of the Fees.

SERVICES

Bike and Saddle will provide the Services to the Customer at the Service Levels.

FEES AND PAYMENT

Due Dates. Payments must be made promptly on the Due Date, without any deduction, set off or demand and free of exchange in the currency specified in the Order.

Manner of payment. The Customer must make payment in the manner specified in the Order.

Late payments. The additional surcharges and penalties specified in the Order will apply to any payment received after the Due Date to cover collection fees and additional administration costs. The Customer must pay the surcharges and penalties to Bike and Saddle on-demand. Bike and Saddle may withhold or remove any Goods or halt the provision of any Services until theCustomer has paid all amounts that are due.

Interest on overdue amounts. Any amount not paid by the Customer on the Due Date will bear interest for the benefit of Bike and Saddle, from the Due Date until the date the Customer pays it. The rate of interest will be either 2% above the published prime overdraft rate of Bike and Saddle’s bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.

Appropriation. Bike and Saddle may appropriate any payment received from the Customer towards the satisfaction of any indebtedness of the Customer to Bike and Saddle under the Agreement.

Withholding payment. The Customer may not withhold payment of any amount due to Bike and Saddle for any reason.

Certificate. A certificate, signed by an accountant appointed by Bike and Saddle, of the amount due by the Customer and the date on which it is payable will be conclusive irrefutable proof of the correctness of the certificate’s contents.

Tax. All fees exclude any tax (including value added tax and other taxes levied in any jurisdiction), duty (including stamp duty), tariffs, rates, levies and any other governmental charge or expense payable, which will be payable where applicable by the Customer in addition to the fees.

Costs to implement. Unless otherwise stated, the parties will bear their own costs to implement (or perform their obligations under) the Agreement.

Payment profile. The Customer and any signatory consent and agree that Bike and Saddle may provide any registered credit bureau with information about the payment of amounts.

WARRANTY

Warranty. The Goods will be subject to any warranty indicated in the description of the Goods appearing on the web site, the accompanying documentation, packaging, or EULA. Please review those documents carefully. The Customer will have the same rights against Bike and Saddle as Bike and Saddle has against the supplier regards defects in the Goods, the intention being that Bike and Saddle’s liability to the Customer will be co-extensive with the right of recourse Bike and Saddle has against the supplier. Bike and Saddle will provide a copy of any warranty on request. To the extent legally possible, Bike and Saddle assigns to the Customer the benefit of any supplier warranties that a supplier may give to Bike and Saddle regards the Goods. The Customer may not waive any of Bike and Saddle’s common law rights against the supplier.

Sales representatives. No sales representatives of Bike and Saddle has the authority to bind Bike and Saddle and no representation, warranty or any other statements made or given by any sales representative of Bike and Saddle will be binding on Bike and Saddle, unless given in Writing and Signed by a duly authorised representative of Bike and Saddle.
SOFTWARE

Please note that intellectual property laws protect all software. Software is licensed, not sold, to the Customer. Unless agreed otherwise, the license for any software is contained in the EULA. The Customer will be required to agree to the EULA prior to use of the software. The applicable EULA, which takes precedence, governs the use of the software. If the Customer does not agree to the EULA, the Customer must return the software in accordance with the Return Policy [http://www.bikeandsaddle.com/pages/return_policy] for a refund of the Fees. If the Customer uses the software (or takes any other action that is described in the packaging or software as constituting the Customer’s consent to the EULA), then the Customer agrees to the EULA and may not be eligible for a refund or return of the software, unless otherwise allowed in the documentation accompanying the software or applicable law.

RESALE AND EXPORTS

If a Customer wishes to resell or export any Goods, the Customer must obtain all required consent or licences under all applicable laws and regulations, including the Export Administration Regulations of the United States of America that may affect or regulate such resale or export.

INTELLECTUAL PROPERTY

Ownership. Except as provided to the contrary in the Agreement, all right, title, interest, and ownership (including all rights under all copyright, patent, and other intellectual property laws) in, to or of this web site are the sole property of or will vest in Bike and Saddle or a third party licensor. All moral rights are reserved.

Trademarks. Bike and Saddle’s logo and sub-logos, marks, and trade names are the trademarks of the rightful owners and no person may use them without permission. Any other trademark or trade name that may appear on this web site or other marketing material of Bike and Saddle is the property of its respective owner.

Restrictions. Except as expressly permitted under the Agreement, this web site may not be:
1. modified, distributed, or used to make derivative works;
2. rented, leased, loaned, sold or assigned;
3. decompiled, reverse engineered, or copied; or
4. reproduced, transferred, or distributed.

Prosecution. All violations of proprietary rights or the Agreement will be prosecuted to the fullest extent permissible under applicable law.

DISCLAIMER OF WARRANTIES

Disclaimer. Use of this web site is at the sole responsibility and risk of each Customer. This web site is provided on an “as is” and “as available” basis. Except for the warranties given in the Agreement, Bike and Saddle expressly disclaims all representations, warranties, or conditions of any kind, whether express or implied, including:
1. any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement; or
2. any warranties regards third party software.

Bike and Saddle does not warrant that this web site will meet the requirements of any Customer or be uninterrupted, be legally effective or complete, timely, secure, error-free or free from infection by malicious software. Each Customer should keep up-to-date security software on the systems used to access this web site.

Exclusion of liability. Despite any warranty given by Bike and Saddle, Bike and Saddle will not be liable regards any defect arising from:
1. fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow its instructions (whether oral or in writing), misuse, or alteration or repair of the Goods without Bike and Saddle’s express prior approval;
2. attachments, features or devices used on the Goods that are not supplied or approved in writing by Bike and Saddle;
3. the use of any version other than the current version of the correct operating system software.

INDEMNITY

Each Customer agrees to indemnify, defend, and hold harmless Bike and Saddle (and its subsidiaries, Affiliates, officers, agents, co-branders or other partners, and employees) from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees) arising out of or relating to its use of this web site.

LIMITATION OF LIABILITY

Correcting faults. Bike and Saddle will correct any fault in this web site where possible and as soon as reasonably practical and this is its entire liability regarding any fault in the web site. If this clause is held inapplicable or unenforceable, then the following clause will apply.

Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, tort, or any other legal theory) in which any legal action may be brought, Bike and Saddle’s maximum liability to a Customer for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by the Customer to Bike and Saddle for the Goods or Services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.

Indirect damages excluded. To the extent permitted by applicable law, in no event will Bike and Saddle (or its personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the Agreement.

Other web site, goods, or services. Bike and Saddle is not liable for any other web site, goods, or service provided by any third party.

TERMINATION

Discontinuing of this web site, the goods, or services. The Agreement will automatically terminate if Bike and Saddle discontinues this web site, Goods or Services.

Breach. If a Customer:
1. commits a breach of the Agreement;
2. repeatedly infringes the copyrights or other rights of others;
3. fails to pay any amount due and fails to remedy the breach within 2 calendar days of having been called on in writing to do so;
4. effects or attempts to effect a compromise or composition with its creditors; or
5. is provisionally or finally liquidated or placed under judicial management;

The Customer agrees that Bike and Saddle may, to the extent permitted by applicable law and without prejudice to its rights in the Agreement or in law, deactivate or delete the Customer’s account, terminate access to or use of the web site, claim specific performance of the Agreement, or cancel the Agreement immediately on written notice and claim damages from the Customer (including, any claim for any Fees already due).

Effects of termination. On the deactivation or deletion of a Customer’s account, the Agreement will terminate and access rights will immediately cease to exist. On termination, cancellation or expiry of any Order all amounts due to Bike and Saddle for Services rendered or Goods ordered prior to termination will become due and payable even if Bike and Saddle has not invoiced them. The Customer may not withhold the amounts for any reason, unless the arbitrator directs otherwise. The termination, cancellation, or expiry of an Order will not affect the enforceability of the terms that are intended to operate after expiry or termination.

DISPUTES

Forum. Any claims by Bike and Saddle against a Customer for injunctive or equitable relief or regarding intellectual property rights may be brought in any competent court without the posting of a bond. The parties will, in the first instance, refer any other dispute arising between Bike and Saddle and a Customer to the Customer Relationship Department of Bike and Saddle, which will use its best endeavours to resolve the dispute. If the parties are unable to resolve a dispute, the dispute will be finally resolved by expedited arbitration in accordance with the dispute resolution procedures and rules [http://www.arbitration.co.za/Pages/docs/expedited_rules.pdf] of the Arbitration Foundation of Southern Africa in the city where Bike and Saddle has its head office in English.

Statute of limitations. Any claim or cause of action by a Customer arising out of or related to the Agreement must (regardless of any statute or law to the contrary) be filed within 12 calendar months after the claim or cause of action arose or be forever barred.

Collection proceedings. Bike and Saddle retains the right to institute collection proceedings in a court of law of competent jurisdiction for matters involving outstanding payment.

NOTICES AND DOMICILE

Notices. All notices, authorisations, disclosures, acknowledgements, and requests must be sent by hand, prepaid registered post, courier, facsimile, or electronic mail to the addresses and numbers provided on this web site. By providing contact information, each party consents to its use for administering the relationship by the other party and other third parties that help a party administer the relationship.

Domicile. Each party chooses its addresses and numbers provided on this web site as its domicilium citandi et executandi (its domicile for being served summons and execution levied) for all purposes.
Change of addresses and numbers. Each party may change the addresses and numbers provided on this web site.

Deemed Delivery. Notice will be deemed delivered on the date shown on the by hand, prepaid registered post, courier, facsimile or electronic mail confirmation of delivery.

Notice actually received. If a notice is actually received by a party, adequate notice will have been given.

CIRCUMSTANCES BEYOND CONTROL

No party will be responsible for any breach of the Agreement caused by circumstances beyond its control, including any breakdown or failure of power supply, the Internet, any telecommunications systems, or any computer hardware or software.

CESSION AND ASSIGNMENT

No Customer may delegate its duties under the Agreement or assign its rights under the Agreement, in whole or in part. Bike and Saddle may assign the Agreement to any successor or purchaser of its business or some of its assets.

GENERAL

Entire Agreement. The Agreement constitutes the entire agreement between the parties in respect of the subject matter of the Agreement.

Changes. The Agreement may be changed at any time by Bike and Saddle and where this affects the rights and obligations of a Customer, Bike and Saddle will notify the Customer of any changes by placing a notice in a prominent place on this web site (or by email). If a Customer does not agree with the change the Customer should stop using this web site. If a Customer continues to use this web site following notification of a change to the Agreement, the changed terms will apply to the Customer.

Fact related to web site. A certificate, signed by an administrator of this web site, of any fact related to this web site (including the version of the Terms that governs a particular Order or dispute and what content was published or functionality was available on the web site at a specific point in time) will be conclusive irrefutable proof of the correctness of the certificate’s contents.

Waiver. No granting of time or forbearance will be, or be deemed to be, a waiver of the Agreement and no waiver of any breach will operate as a waiver of any continuing or subsequent breach.

Severability. If any term is void, unenforceable, or illegal, the term will be severed and the remainder of the Agreement will have full force and effect, provided the severance does not alter the nature of the Agreement.

Governing Law and jurisdiction. The Agreement is governed by and must be interpreted under the laws of the Republic of South Africa and the Customer agrees to submit to the exclusive jurisdiction of the South African courts.

Right to reference. Each Customer consents to Bike and Saddle using its name in any marketing or sales material.

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