TERMS AND CONDITIONS
1.1. This website can be accessed at www.benbenstudio.com, related mobi-sites and software applications (the “Website”) and is owned and operated by BenBen Studio (Pty) Ltd (“BenBen”, “we”, “us” and “our”).
1.2. These Website Terms and Conditions (“Terms and Conditions”) govern the ordering, sale, delivery and return of the products sold by BenBen, meaning all items presently being sold or supplied by us, including, but not limited to: clocks, lights and such other items as may be sold by BenBen from time to time ("Goods"), and the use of the Website.
1.3. These Terms and Conditions are binding and enforceable against every person that accesses or uses this Website (“you”, “your” or “user”), including without limitation each user who registers as an account holder with us as contemplated below (“registered user”). By using the Website and by clicking on the “Create Account” button on the Website, as may be applicable, you acknowledge that you have read and agree to be bound by these Terms and Conditions.
- Important Notice
2.1. These Terms and Conditions apply to users who are consumers for purposes of the Consumer Protection Act, 68 of 2008 (the “CPA”)
2.2. These Terms and Conditions contain provisions that appear in similar text and style to this clause and which –
2.2.1. may limit the risk or liability of BenBen; and/or
2.2.2. may create risk or liability for the user; and/or
2.2.3. may compel the user to indemnify BenBen; and/or
2.2.4. serves as an acknowledgement, by the user, of a fact.
2.3. Your attention is drawn to these provisions in these Terms and Conditions because they are important and should be carefully noted.
2.4. If there is any provision in these Terms and Conditions that you do not understand, it is your responsibility to ask BenBen to explain it to you before you accept the Terms and Conditions or continue using the Website.
2.5. Nothing in these Terms and Conditions is intended or must be understood to unlawfully restrict, limit or avoid any right or obligation, as the case may be, created for either you or BenBen in terms of the CPA.
2.6. BenBen permits the use of this Website subject to the Terms and Conditions. By using this Website in any way, you shall be deemed to have accepted all the Terms and Conditions unconditionally. You must not use this Website if you do not agree to the Terms and Conditions.
2.7. These Terms and Conditions are divided into three sections, as follows:
- Part A – Orders, Sales and Delivery;
- Part C – Return Policy; and
- Part D – General Legal Terms.
PART A – ORDERS, SALES, SHIPPING AND DELIVERY
- Registration and use of the Website
3.1. All users may order Goods on the Website.
3.2. By using the Website you warrant that you are 18 (eighteen) years of age or older and of full legal capacity. If you are under the age of 18 (eighteen) or if you are not legally permitted to enter into a binding agreement, then you may use the Website only with the involvement and supervision of your parent or legal guardian. If your parent or legal guardian supervises you and gives his/her consent, then such person agrees to be bound to these Terms and Conditions and to be liable and responsible for you and all your obligations under these Terms and Conditions.
3.3. You agree that you will not in any way use any device, software or other instrument to interfere or attempt to interfere with the proper working of the Website. In addition, you agree that you will not in any way use any robot, bot, spider, other automatic device, or manual process to monitor, copy, distribute or modify the Website or the information contained herein, without the prior written consent from us (such consent is deemed given for standard search engine technology employed by Internet search websites to direct Internet users to this Website).
3.4. You may not use the Website to distribute material which is defamatory, offensive, contains or amounts to hate speech or is otherwise unlawful.
3.5. You may not in any way display, publish, copy, print, post or otherwise use the Website and/or the information contained therein without the express prior written consent of an authorised Company representative.
- Conclusion of Sales and availability of stock
4.1. Registered users may place orders for Goods, which BenBen may accept or reject. Whether or not we accept an order depends on the availability of Goods, correctness of the information relating to the Goods (including without limitation the price) and receipt of payment or payment authorisation by BenBen for the Goods.
4.2. PLEASE TAKE NOTE: BenBen will indicate the acceptance of your order by delivering the Goods to you, and only at that point will an agreement of sale between you and BenBen come into effect (the “Sale”). This is regardless of any communication from BenBen stating that your order or payment has been confirmed. BenBen will indicate the rejection of your order by cancelling it and, as soon as possible thereafter, refunding you for any amount already paid.
4.3. Orders may not be cancelled after receipt of payment of the Goods by BenBen. After dispatch of your Goods, you may cancel the Sale only in accordance with the Returns Policy.
4.4. Placing Goods in a shopping basket without completing the purchase cycle does not constitute an order for such Goods, and as such, Goods may be removed from the shopping basket if stock is no longer available. You cannot hold BenBen liable if such Goods are not available when you complete or attempt to complete the purchase cycle at a later stage.
4.5. You acknowledge that stock of all Goods on offer is limited. In the case of Goods for sale by BenBen, BenBen will take all reasonable efforts to monitor stock levels and ensure that when stock is no longer available, that offers thereof are discontinued on the Website. However, we cannot guarantee the availability of stock. When Goods are no longer available after placing an order, BenBen will notify you and you will be entitled to a refund of the amount paid by you for such Goods.
5.1. We are committed to providing secure online payment facilities. All transactions are encrypted using appropriate encryption technology.
5.2. Payment is made via a payment gateway as follows:
5.2.1. Card transactions will be acquired for BenBen via who are the approved payment gateway for all South African Acquiring Banks. PayFast uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no card details are stored on the website. Users may go to www.payfast.co.za to view their security certificate and security policy.
5.2.2. Where payment is made by credit card using this service, we may require additional information in order to authorize and/or verify the validity of payment. In such cases we reserve the right to withhold delivery until such time as the additional information is received by us and authorization is obtained by us for the amounts. If we do not receive authorization, your order for the Goods will be cancelled. You warrant that you are fully authorized to use the credit card supplied via the PayFast for purposes of paying the Goods. You also warrant that your credit card has sufficient available funds to cover all the costs incurred as a result of the Goods and services bought and used on the Website;
5.3. You may contact us via email at firstname.lastname@example.org to obtain a full record of your payment. We will also send you email communication about your order and payment.
5.4. Once you have selected proceed to check out and you accept these Terms and Conditions, you will be directed to a link to a secure site for payment of the applicable purchase price for the Goods.
We shall take all reasonable efforts to accurately reflect the description, availability, purchase price and delivery charges of Goods on the Website. However, should there be any errors of whatsoever nature on the Website (which are not due to our gross negligence), we shall not be liable for any loss, claim or expense relating to a transaction based on any error, save – in the case of any incorrect purchase price – to the extent of refunding you for any amount already paid, or otherwise as set out in the Returns Policy.
- General rules relating to payment of the Goods:
7.1. you must be a valid BenBen account holder or guest shopper;
7.2. you may only sign up one email address belonging to yourself. You may not create fictional profiles, email addresses or accounts, or otherwise abuse the system;
7.3. you may not sign for a BenBen account on behalf of your friends, nor may you sign up using your friends’ email addresses. Each User who signs up as a member must sign up as him- or herself with full knowledge that he/she is creating an account;
7.4. you may not use someone else’s account in order to purchase Goods for yourself from the Website; and
7.5. by providing us with your friends’ contact information, you warrant that you are authorised to share that information with us.
BenBen has electronic gift vouchers (“Gift Vouchers”) available for use on the Website towards the purchase of Goods. Gift Vouchers can only be redeemed while they are valid and their expiry dates cannot be extended.
Gift Vouchers that are purchased by registered users are valid for 3 years after purchase of such Gift Voucher.
Gift Vouchers cannot be used to purchase other Gift Vouchers, do not accrue interest and are not refundable for cash.
BenBen is not responsible for any loss or unauthorised use of the Gift Voucher once it has been delivered to you, either physically or to your nominated email address.
PART D – GENERAL LEGAL TERMS
- Changes to these terms and conditions
12.1. BenBen may, in its sole discretion, change any of these Terms and Conditions at any time. It is your responsibility to regularly check these Terms and Conditions and make sure that you are satisfied with the changes. Should you not be satisfied, you must not place any further orders on, or in any other way use, the Website.
12.2. Any such change will only apply to your use of this Website after the change is displayed on the Website. If you use the Website after such amended Terms and Conditions have been displayed on the Website, you will be deemed to have accepted such changes.
- Electronic communications
- Ownership and copyright
14.1. The contents of the Website, including any material, information, data, software, icons, text, graphics, lay-outs, images, sound clips, advertisements, video clips, trade names, logos, trade-marks, designs and service marks which are displayed on or incorporated in this Website (“Website Content”) are protected by law, including but not limited to copyright and trade mark law. The Website Content is the property of BenBen, its advertisers and/or sponsors and/or is licensed to BenBen.
14.2. You will not acquire any right, title or interest in or to the Website or the Website Content.
14.3. Any use, distribution or reproduction of the Website Content is prohibited unless expressly authorized in terms of these Terms and Conditions or otherwise provided for in law. To obtain permissions for the commercial use of any Website Content contact us at email@example.com.
14.4. Where any of the Website Content has been licensed to BenBen or belongs to any third party, your rights of use will also be subject to any terms and conditions which that licensor or third party imposes from time to time and you agree to comply with such third party terms and conditions.
15.1. The use of the Website is entirely at your own risk and you assume full responsibility for any risk or loss resulting from use of the Website or reliance on any information on the Website.
15.2. Whilst BenBen takes reasonable measures to ensure that the content of the Website is accurate and complete, BenBen makes no representations or warranties, whether express or implied, as to the quality, timeliness, operation, integrity, availability or functionality of the Website or as to the accuracy, completeness or reliability of any information on the Website.
15.3. BenBen disclaims liability for any damage, loss or liability, whether direct, indirect or consequential in nature, arising out of or in connection with your access to or use of the Website and/or any content therein unless otherwise provided by law.
15.4. Although Goods sold from the Website may, under certain specifically defined circumstances, be under warranty, the Website itself and all information provided on the Website is provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, completeness, or non-infringement, as may be allowed in law.
15.5. Any views or statements made or expressed on the Website are not necessarily the views of BenBen, its directors, employees and/or agents.
15.6. In addition to the disclaimers contained elsewhere in these Terms and Conditions, BenBen also makes no warranty or representation, whether express or implied, that the information or files available on the Website are free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of your computer system, computer network, hardware or software in any way. You accept all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, computer network, any handset or mobile device, or your hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of BenBen, its employees, agents or authorised representatives. BenBen thus disclaims all liability for any damage, loss or liability of any nature whatsoever arising out of or in connection with your access to or use of the Website.
- Linked third party websites
16.1. This Website may contain links or references to other websites (“Third Party Websites”) which are outside of our control, including those of advertisers. These Terms and Conditions do not apply to those Third Party Websites and BenBen is not responsible for the practices and/or privacy policies of those Third Party Websites or the “cookies” that those sites may use.
16.2. Notwithstanding the fact that the Website may refer to or provide links to Third Party Websites, your use of such Third Party Websites is entirely at your own risk and we are not responsible for any loss, expense, claim or damage, whether direct, indirect or consequential, arising from your use of such Third Party Websites or your reliance on any information contained thereon.
- Limitation of liability
17.1. BenBen cannot be held liable for any inaccurate information published on the Website and/or any incorrect prices displayed on the Website, save where such liability arises from the gross negligence or wilful misconduct of BenBen, its employees, agents or authorised representatives. You are encouraged to contact us to report any possible malfunctions or errors by way of email to firstname.lastname@example.org.
17.2. BENBEN SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES WHICH MIGHT ARISE FROM YOUR USE OF, OR RELIANCE UPON, THE WEBSITE OR THE CONTENT CONTAINED IN THE WEBSITE; OR YOUR INABILITY TO USE THE WEBSITE, AND/OR UNLAWFUL ACTIVITY ON THE WEBSITE AND/OR ANY LINKED THIRD PARTY WEBSITE.
17.3. YOU HEREBY INDEMNIFY US AGAINST ANY LOSS, CLAIM OR DAMAGE WHICH MAY BE SUFFERED BY YOURSELF OR ANY THIRD PARTY ARISING IN ANY WAY FROM YOUR USE OF THIS WEBSITE AND/OR ANY LINKED THIRD PARTY WEBSITE.
- Availability and termination
18.1 We will use reasonable endeavours to maintain the availability of the Website, except during scheduled maintenance periods, and reserve the right to discontinue providing the Website or any part thereof with or without notice to you.
18.2. BenBen may in its sole discretion terminate, suspend and modify this Website, with or without notice to you. You agree that BenBen will not be liable to you in the event that it chooses to suspend, modify or terminate this Website other than for processing any orders made by you prior to such time and to the extent possible.
18.3. If you fail to comply with your obligations under these Terms and Conditions, including any incident involving payment of the price of an order for any Goods, and you fail to remedy such failure within 7 (seven) days of notice to you by us, this may (in our sole discretion) lead to a suspension of your access to the Website without any prejudice to any claims for damages or otherwise that we may have against you.
- Governing law and jurisdiction
19.1. These Terms and Conditions and our relationship and/or any dispute arising from or in connection with these Terms and Conditions shall be governed and interpreted in accordance with the laws of the Republic of South Africa. Your continued use of the Website will constitute your consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from any of these Terms and Conditions.
19.2. In the event of any dispute arising between you and BenBen, you hereby consent to the non-exclusive jurisdiction of the High Court of the Republic of South Africa (Western Cape Division, Cape Town) notwithstanding that the quantum in the action or proceedings may otherwise fall below the monetary jurisdiction of that court.
19.3. Nothing in this clause 19 or the Terms and Conditions limit your right to approach any court, tribunal or forum of competent jurisdiction in terms of the CPA.
20.1. BenBen hereby selects 32 Van Hoogstraaten, Hout Bay, Cape Town, 7806 as the address for the service of all formal notices and legal processes in connection with these Terms and Conditions (“nominated address”). BenBen may change this address from time to time by updating these Terms and Conditions.
20.2. You hereby select the address specified on the Goods order form as your nominated address, but you may change it to any other physical address by giving BenBen not less than 7 days’ notice in writing.
20.3. Notices must be sent either by hand, prepaid registered post, telefax or email and must be in English. All notices sent to email@example.com:
20.3.1. by hand will be deemed to have been received on the date of delivery;
20.3.2. by prepaid registered post, will be deemed to have been received 10 days after the date of posting; and
20.3.3. by email will be deemed to have been on the date indicated in the “Read Receipt” notification. ALL EMAIL COMMUNICATIONS BETWEEN YOU AND US MUST MAKE USE OF THE “READ RECEIPT” FUNCTION to serve as proof that an email has been received.
- BenBen information
For the purposes of the Electronic Communications and Transactions Act, 25 of 2002, BenBen's information is as follows, which should be read in conjunction with its product descriptions and other terms and conditions contained on the Website:
21.1. Full name: Ben Ben Studio (Pty) Ltd, a private company registered in South Africa with registration number 2021/325094/07
21.2. Main business: Retail of various goods, including décor items.
21.3. Office bearers: Alain Ferrier and Celeste Munge
21.4. Email address: firstname.lastname@example.org
22.1. BenBen may, in its sole discretion, at any time and for any reason and without prior written notice, suspend or terminate the operation of the Website or the user’s right to use the Website or any of its contents subject to us processing any orders then already made by you.
22.2. You may not cede, assign or otherwise transfer your rights and obligations in terms of these Terms and Conditions to any third party.
22.3. Any failure on the part of you or BenBen to enforce any right in terms hereof shall not constitute a waiver of that right.
22.4. If any term or condition contained herein is declared invalid, the remaining terms and conditions will remain in full force and effect.
22.5. No variation, addition, deletion, or agreed cancellation of the Terms and Conditions will be of any force or effect unless in writing and accepted by or on behalf of the parties hereto.
22.6. No indulgence, extension of time, relaxation or latitude which any party (the “grantor”) may show grant or allow to the other (the “grantee”) shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.
22.7 These Terms and Conditions contain the whole agreement between you and BenBen and no other warranty or undertaking is valid, unless contained in this document between the parties.