1.
1.1
PREAMBLE
The Terms and Conditions are available on the website of the Company, and are applicable to
any clients and consumers of the Company.
1.2 The Terms and Conditions govern the relationship between the Company and its Clients, and
shall constitute a valid and binding agreement between the respective Client(s) and the
Company.
1.3 By using the Services of the Company, the Client signify that he/she have read, understood and
agreed to be bound by the Terms and Conditions, as may be updated by the Company from time
to time.
2.DEFINITIONS AND INTERPRETATION
In this document, unless the context otherwise requires, the following capitalised terms shall have
the meanings assigned to them below and cognate expressions shall have corresponding meanings:
“Affected Party”has the meaning ascribed thereto in clause 19.1 (Force Majeure);
“Amendments”has the meaning ascribed thereto in clause 3.1 (Amendment of Terms
and Conditions);
“Client” means any individual that requires the Services from the Company,
which for purposes of this Terms and Conditions shall include any initial
consultations and/or engagement between the Client and the Company;
“Company”means Smith Maarsingh & Mare Optometrists Incorporated with
registration number 2000/010290/21, a company duly registered in
accordance with the relevant company laws of the Republic of South
Africa;
“Indulgence”has the meaning ascribed thereto in clause 17 (Waiver);
“Linked Sites”has the meaning ascribed thereto in clause 7.1 (Dealings with Third
Parties and Third Part Links) below;
“Parties”means the Company and Client collectively, and any reference to “a
Party” shall refer to one of the relevant Parties as required by the context;
“POPIA”means the Protection of Personal Information Act 4 of 2013, as amended
“Services”means the optometry services rendered by the Company as detailed on
the Website; and
Page 2 of 10
“Website” means the official website of the Company.
AMENDMENT OF THE TERMS AND CONDITIONS
It is recorded for avoidance of doubt, that the Company reserves the right and may in its sole
discretion amend the Terms and Conditions at any time and manner of its choosing. This shall
include the right to change, modify, add or remove portions or the whole of these Terms and
Conditions.
3.2 The amended Terms and Conditions (collectively referred to as the “Amendments”) shall
become effective immediately upon the posting thereof on the Website of the Company and shall
automatically bind the Client without further notice.
3.3 It is the responsibility of the Client to periodically inform himself/herself with the Terms and
Conditions and to further take note of any Amendments.
3.4 The continued use of the Services by the Client, shall be deemed to constitute full acceptance to
be bound to any terms in this Terms and Conditions and/or Amendments.
4.
4.1 CAPACITY
The use of this Website is only permitted to Clients older than 18 (EIGHTEEN) years. In the event
that the Client is below the age of 18 (EIGHTEEN) years, a parent or guardian should be present
for any part of the Services rendered.
4.2 The Client must have the necessary legal capacity to enter into a valid and binding contract with
the Company.
4.3 By using the Services, the Client warrants that they are 18 (EIGHTEEN) years or older,
emancipated or have his/her parent’s/ guardian’s consent to enter into this Terms and Conditions
with the Company (as the case may be).
5.
5.1 ACCESS TO THE WEBSITE
Access to the Website is permitted on a temporary basis, and the Company reserves the right to
withdraw or amend the Services without further notice.
5.2 The Company will not be liable, if for any reason, the Website is unavailable at any time and/or
for any period of time.
5.3 The Company reserves the right to restrict access to some or all parts of this Website as required
from time to time.
5.4 The Company shall be permitted, at its sole discretion, to make any such amendments,
alterations or modifications to the Website from time to time.
6.
6.1 PRIVACY POLICY
The Privacy Policy of the Company can be accessed by the Client on the Website and shall be
read together with the Terms and Conditions.
6.2 By accepting these Terms and Conditions the Client also consent to the processes described in
our Privacy Policy and warrant that all data the Client has provided to the Company is accurate,
complete and current.
6.3 For avoidance of doubt, in the event that the provisions of the Terms and Conditions contradict
with those contained in the Privacy Policy, the provisions of the Privacy Policy shall prevail.
7.
7.1 DEALINGS WITH THIRD PARTIES AND THIRD PART LINKS
This Website may contain links to other websites (“Linked Sites”) which are not operated by the
Company and over which the Company has no direct or indirect control.
7.2 The Client indemnifies and shall continue to hold the Company indemnified against any loss,
damage or claims that may arise from the Client accessing and/or engaging with the Linked Sites.
7.3 The Client acknowledges and agrees that the Company is not responsible and shall not be held
liable for any content, information, goods or services available on or through any such Linked
Sites, or for any damage or loss caused by or in connection with the Client’s use of or reliance
on any such content, information, goods or services on or through any such Linked Sites.
7.4 It is recorded that the Client’s access or engagement with the Linked Sites shall be at his/her own
risk and the Company hereby expressly states that it accepts no responsibility whatsoever for
the Client’s access, use or communication with Linked Sites.
7.5 The Company herewith records that it in no way endorses the entities, marketing, products or
services as referred to in the Linked Sites, and that the intellectual property and data contained
in such Linked Sites are not vetted by the Company in any manner.
8.
8.1 CLIENT CONDUCT AND PROHIBITIONS
The Client agrees and undertake that he/she will not –
8.1.1 misuse the Website;
8.1.2c ommit or encourage a criminal offense;
8.1.3 transmit or distribute a virus, trojan, worm, logic bomb or any other material which is
malicious, technologically harmful, in breach of confidence or in any way offensive or
obscene;
8.1.4 hack into any aspect of the Service, Website and/or Company;
8.1.5 corrupt data;
8.1.6 cause annoyance to other Clients;
8.1.7 infringe upon the rights of any other person’s proprietary rights;
8.1.8 send any unsolicited advertising or promotional material, commonly referred to as “spam”;
8.1.9 provide any misinformation or misinterpretation to the Company; or
8.1.10 attempt to affect the performance or functionality of any computer facilities of or accessed
through this Website.
8.2 Any breach by the Client of the terms contained in this clause 8 may constitute a criminal offense
and upon becoming aware of such criminal offense, the Company shall be permitted to report
any such breach and disclose the identity of any person involved in such breach, or suspected
of being involved in such breach, to the relevant law enforcement authorities.
9.
9.1 INTELLECTUAL PROPERTY
The intellectual property rights in all software and content (including photographic images) made
available to the Client on or through this Website remains the property of the Company and/or its
licensors, whether registered or unregistered in nature.
9.2 All such proprietary works, and the compilation of such proprietary works, are the subject of
copyright and intellectual property rights which belongs to the Company, its affiliates and/or
subsidiaries (“the Intellectual Property Owners”) and is protected by South African and
international laws and treaties that regulate intellectual property rights and commercialisation
thereof.
9.3 All such rights are reserved by the Company and its licensors, and it is recorded that no
intellectual property rights shall transfer from the Intellectual Property Owners to the Client. All
rights in and to the relevant intellectual property in question is reserved and retained by the
relevant Intellectual Property Owners.
9.4 The Client is not permitted to publish, manipulate, distribute or otherwise reproduce, in any
format, any of the content or copies of the content supplied to the Client or which appears on this
Website nor may the Client use any such content in connection with any business or commercial
enterprise.
9.5 Except where expressly stated to the contrary all persons (including their names and images),
third party trademarks and content, services and/or locations featured on this Website are in no
Page 5 of 10way associated, linked or affiliated with the Company and the Client should not rely on the
existence of such a connection or affiliation.
9.6 Any trademarks or names featured on this Website are owned by the respective trademark
owners. Where a trademark or brand name is referred to it is used solely to describe or identify
the products and services and is in no way an assertion that such products or services are
endorsed by or connected to the Company.
9.7 Except as specified in these Terms and Conditions, the Client is not granted a license or any
other right including without limitation under any copyright, trademark, patent or other intellectual
property in or to the content.
10.
10.1 TERMS OF SALE AND CONTRACT
By placing an order, the Client are offering to purchase a product on and subject to the following
terms and conditions:
10.1.1 All orders are subject to availability and confirmation of the order price.
10.1.2 Dispatch times may vary according to availability and subject to any delays resulting from
postal delays or force majeure for which we will not be responsible.
10.2
In order to contract with the Company, the Client must –
10.2.1 be over 18 (EIGHTEEN) years of age or have the necessary legal capacity to do so; and
10.2.2 possess a valid credit or debit card issued by a bank acceptable to the Company.
10.3
Any placement of order and sale of products or rendering of services, shall be governed by
the policies, procedures and directives of the Company, as applicable.
11.
11.1 PRICING AND AVAILABILITY
Whilst the Company continuously endeavours to ensure that all details, descriptions and prices
which appear on this Website are accurate and current, errors may still occur. If subsequent to
ordering, the Company discovers an error in the price of any goods so ordered we will inform the
Client of said error as soon as possible and give the Client the option of either reconfirming their
order at the correct price or cancelling it.
11.2 The Company does not accept responsibility for the occurrence of any errors or omissions on
this Website as it pertains to the pricing or indication of availability of products. The Client shall
be required to obtain a formal quotation from the Company confirming the latest prices and
availability of products.
12.
12.1 DISCLAIMER AND LIMITATION OF LIABILITY
To the fullest extent permitted by law, we disclaim all warranties of any kind, whether express or
implied, including without limitation to the implied warranties that the content published to the
Website is fit for any purpose. The material displayed on this Website is provided without any
guarantees, conditions or warranties as to its accuracy.
12.2 It is important to take note that the Website is made available to the Client on an “as is” basis and
the Client’s access and use thereof is solely at own risk.
12.3 Although the Company takes all reasonable steps to verify the information on the Website, we
do not warrant its accuracy or reliability of any information, statement or opinion contained in,
displayed on or linked to the Website. Accordingly, the Client therefore acknowledges that any
reliance upon any such information, statement or opinion shall be entirely at the Client’s own risk.
12.4 Neither the Company, its suppliers, content providers nor its advertisers shall be held responsible
for any direct or indirect special, consequential or other damage of any kind whatsoever suffered
or incurred, related to the use of, or the inability to access or use the Services and/or the Website,
the functionality thereof, or of any Linked Sites
12.5 Unless expressly stated to the contrary, to the fullest extent permitted by law the Company and
its hereby expressly exclude all conditions, warranties and other terms which might otherwise be
implied by statute or common law and shall not be liable for any damages whatsoever, including
but not limited to the following: any direct, indirect, special, consequential, punitive or incidental
damages, or damages for loss of use, profits, data or other intangibles, damage to goodwill or
reputation, or the cost of procurement of substitute goods and services, arising out of or related
to the use, inability to use, performance or failures of this Website or the Linked Sites and any
materials posted thereon, irrespective of whether such damages were foreseeable or arise in
contract, delict, equity, restitution, by statute, at common law or otherwise.
13. INDEMNITY
The Client agrees to indemnify, defend and hold harmless the Company, our directors, officers,
employees, consultants, servants, agents, and affiliates from any and all third party claims,
liability, damages and/or costs (including, but not limited to, legal fees) arising from the Client’s
use of this Website, Services or the Client’s breach of the Terms and Conditions.
14. GOVERNING LAW
The law governing these Terms and Conditions, including without limitation its interpretation and
all disputes arising out of these Terms and Conditions, is the law of the Republic of South Africa
and the Parties submit to the exclusive jurisdiction of the South African courts in respect of any
matter arising from or in connection with these Terms and Conditions. Any such directives or
Page 7 of 10regulations that govern the rendering of the Services, shall be deemed to form an integral part of
the interpretation of the Terms and Conditions.
15. VARIATION
The Company, at its sole discretion, reserves the right to amend, remove or vary the Services
and/or any page of this Website at any time and without notice to the Client.
16. INVALIDITY
Whenever possible, each provision of these Terms and Conditions shall be interpreted in a
manner which makes it effective and valid under applicable law, but if any part of the Terms and
Conditions is held to be illegal, invalid or unenforceable under applicable law, that illegality,
invalidity or unenforceability shall not affect the other provisions of this Terms and Conditions, all
of which shall remain in full force.
17. WAIVER
Any relaxation, indulgence or delay (collectively referred to as “Indulgence”) by the Company in
exercising, or any failure by the Company to exercise, any right under these Terms and
Conditions shall not be construed as a waiver of that right and shall not affect the ability of the
Company to subsequently exercise that right or to pursue any remedy, nor shall any Indulgence
constitute a waiver of any other right.
18.
18.1 DATA PROCESSING
The Parties hereby acknowledge and agree that in the course and scope of the relationship
envisaged in terms of these Terms and Conditions, that they shall be required, from time to time,
to process Personal Information (as defined in POPIA) of each other.
18.2
18.2.1 Pursuant to the provisions of clause 18.1 above, each Party hereby warrants that it shall –
ensure that it secures the confidentiality and integrity of all Personal Information obtained
and/or Processed (as defined in POPIA) by it or on its behalf in accordance with the
provisions of the POPIA or any other applicable data protection laws;
18.2.2 ensure that processing of Personal Information of the other Party shall be for no other
purposes than that required to comply with its duties under and otherwise give effect to
these Terms and Conditions, and shall make no such Personal Information available to any
external third party save as provided for in these Terms and Conditions and unless it is
required for the performance of these Terms and Conditions;
18.2.3 maintain industry standard administrative, physical, and technical safeguards for the
protection, security, confidentiality, and integrity of the other Party’s Personal Information
Page 8 of 10in its custody and control for the duration of these Terms and Conditions and thereafter (to
the extent that such Personal Information is not deleted or destroyed) and shall ensure that
it remains compliant with the provisions of POPIA or any other applicable data protection
laws; and
18.2.4 adhere to all applicable data protection regulations, including in particular to any applicable
provisions of POPIA, or any other applicable data protection laws, as well as all directives
and guidance issued by the Information Regulator (as defined in POPIA).
18.3 Each Party hereby indemnifies the other from any liability or loss incurred by such Party of
whatsoever nature as a result of the other Party’s breach of the obligations bestowed on it, in
terms of POPIA (or any other applicable data protection laws) and this clause 18.
19.
19.1 FORCE MAJEURE
Neither Party shall have any claim against the other Party (the “Affected Party”) for any delay or
failure by the Affected Party to carry out any of its obligations under these Terms and Conditions
or any Statement of Work arising from a force majeure event.
19.2 The performance of any obligation by the Parties shall be suspended for as long as the force
majeure event exists but only in so far as the fulfilment of that obligation is impeded.
19.3 Should the duration of a force majeure event exceed 30 (THIRTY) days, either Party shall be
entitled to cancel these Terms and Conditions or any applicable the statement of works (if any)
affected by such event.
20.
20.1 DISPUTE RESOLUTION
Should any dispute arise between the Parties related to the Terms and Conditions with regard to
the interpretation, implementation, execution or termination of the Terms and Conditions, such
matter shall be submitted to arbitration.
20.2 The arbitration shall be conducted in accordance with the provisions of the Arbitration Act 42 of
1965, provided that –
20.2.1a single arbitrator shall be appointed; and
20.2.2 the arbitrator shall be a practicing counsel or attorney of not less than 10 (TEN) years
standing agreed upon by the parties within 10 (TEN) days after the date on which the
arbitration is called for.
20.3 If the Parties fail to reach agreement within 10 (TEN) days after arbitration has been called for on
the arbitrator to be appointed, such arbitrator shall be appointed by the provincial director for the
time-being of the Legal Practice Council of the Free State Province.
20.4 The arbitration proceedings shall take place in Bloemfontein at a venue and time to be
determined by the arbitrator.
20.5 The arbitration proceedings shall be held informally and in a summary manner, and all procedural
requirements and formalities shall be determined by the arbitrator. In determining such formalities
and procedure, the arbitrator does not need to observe the normal strict rules of evidence or
usual formalities of procedure.
20.6 The decision of the arbitrator shall be final and binding on the Parties.
20.7 The cost of the arbitration proceedings shall be borne by the Parties as decided by the arbitrator.
20.8 This arbitration clause shall not prevent the Parties from access to an appropriate court of law for
–
20.8.1 interim relief in the form of an interdict, mandamus or order for specific performance
pending the outcome of an arbitration in terms hereof or in respect of such arbitration or
expert determination, as the case may be; and
20.8.2 an order for the payment of a liquidated amount of money on the basis of facts which are
not bona fide in dispute at the commencement of such proceedings.
21.
21.1 MISCELLANEOUS
Save as expressly permitted hereunder, the Client shall not, without the prior written approval of
the Company, which shall not be unreasonably withheld, assign, cede, delegate, transfer or
otherwise dispose of any right or obligation under this Terms and Conditions to any other person.
21.2 Except where expressly provided to the contrary in this Terms and Conditions, this Terms and
Conditions constitutes the entire agreement between the Parties in connection with its subject
matter and supersedes all prior representations, communications, negotiations and
understandings concerning the subject matter of this Terms and Conditions.
21.3 Whenever possible, each provision of this Terms and Conditions shall be interpreted in a manner
which makes it effective and valid under applicable Law, but if any provision of this Terms and
Conditions is held to be illegal, invalid or unenforceable under applicable Law, that illegality,
invalidity or unenforceability shall not affect the other provisions of this Terms and Conditions, all
of which shall remain in full force.