DEFINITION & INTERPRETATION

 

1.1 “JHTSA” or “our” or “we” or “us” means Johnson Health Tech South Africa (Pty) Ltd, with registration number 2021/340809/07, Building 10, Riversands Outlet Park, Riversands Johannesburg, 2191.

1.2 “Customer” or “you” means the person who purchases Products and/or Services from JHTSA.

1.3 “Products” means the product/s which JHTSA will supply to the Customer in accordance with these terms and conditions as confirmed in our Order Confirmation.

1.4 “Order” means the Products and/or Services the Customer has purchased; “Services” means the Services which JHTSA will provide to the Customer in accordance with these terms and conditions as confirmed in our Order Confirmation.

1.5 “Order Confirmation” means the order acknowledgment which JHTSA will send to the Customer confirming acceptance and details of the order for Products and/or Services.

1.6 “Contract” means the terms and conditions contained in this document.

1.7 “Price” means the amount in South African Rands (ZAR) for the Products and/or Services as detailed in the Order Confirmation, excluding VAT.

1.8 “VAT” means value added tax.

1.9 “Cancellation Period” means the cooling-off period whereby the Customer may return the Products in the same condition as they were delivered and received.

1.10 “applicable legislation” means the Consumer Protection Act of 2008 (the CPA), the Protection of Personal Information Act of 2013 (the POPI Act) and the Electronic Communications and Transactions Act of 2002 (the ECT), as amended from time to time.

1.11 “Delivery Date” means the date for delivery by JHTSA to the Customer of the Products and/or the date of commencement of the provision of the Services as detailed in the Order Confirmation;

1.12 “Force Majeure” means events which may result in a delay of the supply of Products and/or Services including, but not limited to, an Act of God, weather of exceptional severity, war, military operations, terrorist action, strikes, the act or omission of any party for whom either party is not responsible or any other cause whatsoever beyond either party’s reasonable control.

1.13 References to “written” or “in writing” refers to email communications.

1.14 This document, together with any documents expressly referred to, sets out the terms and conditions on which JHTSA will supply any of the Products and/or Services listed on our website, to the Customer. The Customer is advised by JHTSA to read these terms and conditions carefully before ordering any Products and/or Services. The Customer understands and expressly agrees that, by ordering any Products and/or Services, it acknowledges and accepts these terms and conditions comprising the Contract between us.

1.15 The Customer should print a copy of our terms and conditions for future reference.

1.16 If the Customer agrees to and accepts these terms and conditions, this will be confirmed once the tick-box has been marked at the checkout stage on our website. If the Customer refuses to accept these terms and conditions, the Products and/or Services will not be available to purchase from our website and no Contract will thereby have come into existence.

1.17 Our website is only intended for use by Customers who are resident in South Africa or are purchasing Products and/or Services to be delivered in or to South Africa.

 

2. CUSTOMER STATUS

 

2.1 By placing an order through our website, the Customer warrants that:

2.1.1 You are legally capable of entering into binding contracts;

2.1.2 You are at least 18 years old;

2.1.3 You are purchasing the Products and/or Services for your own personal and non-business use;

2.1.4 You are purchasing the Products or Services for delivery in South Africa;

2.1.5 You will not acquire ownership of any Products unless they are paid for in full.

2.2 Any personal data that JHTSA receives concerning the Customer shall be used only in accordance with JHTSA’s Privacy Policy, and in compliance with applicable legislation. JHTSA encourages the Customer to read the Privacy Policy so the choices concerning the protection of the Customer’s personal information are fully understood.

 

3. ORDER CONTRACT

 

3.1 Once an order is confirmed, the Customer’s confirmation comprises an offer to us to buy the relevant Products or Services. All orders are subject to acceptance by JHTSA, and we will confirm such acceptance to you by sending you an email that comprises an Order Confirmation. The Contract between JHTSA and the Customer will only come into existence when JHTSA issues the Order Confirmation.

3.2 The Contract will only apply to those Products or Services which are confirmed by JHTSA in the Order Confirmation. JHTSA is not obliged to supply any other Products and/or Services which may not have been part of the original order unless such Products and/or Services have been confirmed in a separate Order Confirmation.

 

4. CONSUMER RIGHTS

 

4.1 The Contract Cancellation Period for the Customer is as follows:

4.1.1 Products: at any time within 5 days, beginning on the day after you received the relevant Products, regard being had to the provisions contained in the CPA; or

4.1.2 Services: at any time within 5 days after you receive the Order Confirmation unless you have arranged to receive the Services within that time, in which case you may cancel at any time prior to receiving the Services.

4.2 To cancel the Contract, the Customer must inform JHTSA in writing within the Cancellation Period.

4.3 Should the Customer cancel the Contract, the Customer must return all Products purchased to JHTSA immediately, in the same condition in which the Products were received, at the Customer’s own cost and risk. The Customer has a legal obligation to take reasonable care of the Products while they are in your possession. If the Customer fails to comply with this obligation, JHTSA may have a right of action against the Customer for appropriate compensation or damages.

 

5. AVAILABILITY AND DELIVERY

 

5.1 The Customer’s order will be performed and completed by the delivery date set out in the Order Confirmation or, if no delivery date is specified, then within a reasonable time of the date of the Order Confirmation, unless there are exceptional circumstances.

5.2 The approximate time for delivery is 28 days from the date of the Order Confirmation (where payment is made by credit card) or from receipt of the proof of payment document certifying payment by wire or EFT transfer. The delivery date will be arranged by JHTSA in accordance with our operators in the area of the delivery and will vary based on the delivery address, type and quantity of Products, Services to be provided and other relevant factors.

 

6. RISK AND TITLE

 

6.1 The risks in and to all Products supplied by JHTSA will be transferred to the Customer from the time of delivery at the Customer’s nominated premises as per the details contained in the Order Confirmation.

6.2 Ownership of the Products will only pass to the Customer when JHTSA receives full payment of all amounts due in respect of the Products and/or Services, including delivery and any installation charges.

 

7. PRICE AND PAYMENT

 

7.1 The price of the Products and/or Services will be as quoted on our website from time to time, except in cases of obvious or manifest error.

7.2 Unless JHTSA has explicitly stated otherwise, our prices are exclusive of any applicable VAT, which will be added to the total amount due.

7.3 Delivery and installation fees will be subject to location, calculated from Key City Centres, and will be confirmed by JHTSA in advance of delivery.

7.4 Prices are subject to change at any time, but changes will not affect orders that have already been placed and paid for, in respect of which you have received an Order Confirmation.

7.5 Our website contains a number of Products and/or Services and it is always possible that, despite our best efforts, some of the Products and/or Services listed may be incorrectly priced. If a Product and/or Service´s correct price is higher than the price stated on the website, JHTSA will, at our discretion, contact the Customer for instructions before dispatching the Products and/or Services, or reject the original order and notify the Customer of such rejection.

7.6 JHTSA is under no obligation to provide the Products and/or Services to the Customer at the incorrect, lower price, even after the Customer has received the Order Confirmation, if the pricing error is obvious and unmistakable and could have reasonably been recognised by the Customer as a mispricing.

7.7 Payment for all Products and/or Services must be by credit or debit card, bank wire or EFT transfer.

7.8 Payment must be made in a single instalment, prior to delivery, which can be made as follows:

7.8.1 Credit card: VISA and Mastercard via Peach Payments. The order will transit through the information systems of Peach Payments, which will confirm the validity of the card to JHTSA.

7.8.2 In case of payment by debit or credit card, confirmation of the Contract will require confirmation of the economic transaction by JHTSA’s bank. In case of payment by wire transfer, the order will be completed only after receipt of the bank confirmation within seven (7) working days.

7.9 If JHTSA does not receive the bank receipt within the above term, we reserve the right to consider the order null and void and to terminate the Contract without written notice to the Customer, irrespective of whether or not an Order Confirmation has been issued. Delivery is subject to proof of payment and the delivery process only starts from receipt of the document certifying or confirming payment or proof thereof.

 

8. REFUNDS POLICY

 

8.1 If the Customer would like to return a Product, this will need to be formally requested in writing via email by contacting info@johnsonfitness.co.za. JHTSA may, in exceptional circumstances only, and at its sole discretion, permit cancellation of the Contract and/or refund the deposit, subject to the Customer paying the quoted handling fee.

8.2 In the event the Customer returns a Product as agreed to by us:

8.2.1 as a result of cancelling the Contract within the 5-day cooling-off period (see clause 4.1 above), JHTSA will process the refund due as soon as possible and, in any case, within 14 days of receiving the Products back in good order and condition. In this case, we will refund the price of the Products in full, including the cost of original delivery. However, the Customer is responsible for the cost of handling fees on returning the Products in question to us.

8.2.2 for any other reason (including but not limited to, claiming that the Products are defective), we will examine the returned Products and will notify the Customer of the approval of the refund in writing via email within a reasonable period of time. We will usually process the refund due to you as soon as possible and, in any case, within 30 days of the day we confirmed to the Customer via email that any one or more of the Products are defective. Products returned by the Customer because of a defect will be refunded in full, including the cost of original delivery and the cost incurred by the Customer in returning the Products in question to us.

 

9. REPAIRS AND MAINTENANCE

 

9.1 The Customer shall only use the Products as per manufacturers’ specifications and shall not alter or modify the Products in any manner whatsoever in order not to vitiate any applicable service plan or Warranty Policy.

9.2 The Customer shall, if applicable, service and maintain the Products as per manufacturers’
or JHTSA’s specifications or requirements, or in terms of any applicable Warranty Policy.

9.3 JHTSA shall be entitled to charge a Call-Out Cost in regard to the inspection, repairs to or servicing of any Products, along with any labour or parts costs, subject to the provisions contained in JHTSA’s service plan or Warranty Policy.

9.4 Any repairs to or servicing of any Products shall only be attended to by a technician approved and appointed by JHTSA, failing which JHTSA shall accept no responsibility or liability in respect of the Products in question.

 

10. LIABILITY

 

10.1 Provided that it exercised reasonable care, JHTSA shall not be liable for any damage to the property of the Customer or of any third party, or for any injury, death or bodily harm to the Customer in delivering and installing the Products, or in respect of the use thereof.

10.2 JHTSA’s liability in terms of these Terms of Sale shall not exceed the Purchase Price of the Products in respect of any claims that may arise from any reckless or negligent acts or omissions of JHTSA in delivering or installing the Products, or in respect of any claims arising from breach of the Warranty Policy.

10.3 JHTSA shall in addition not be liable in any manner for any injury, accident or death to the Customer, whether as a result of the Customer’s ill-health or poor physical condition, or otherwise. It shall be the Customer’s sole responsibility to ascertain his (and any users) state of health and physical condition prior to using any of the Products.

10.4 JHTSA warrants that any Services it may provide to the Customer will be performed with all reasonable skill and care and in accordance with applicable law.

10.5 Any claim against JHTSA must be brought to JHTSA’s attention by means of a written notice by the Customer setting out the details of the claim, within three (3) months of the claim arising and legal proceedings must be instituted within a further three (3) months thereafter, regard being had to the provisions contained in clause 22 below.

10.6 Subject to clause 10.2 and unless JHTSA could have reasonably foreseen and prevented the resulting loss or damage, JHTSA shall not be liable for any damage to property, death, bodily injury or economic loss, that arises directly or indirectly from the use of the Products and the Customer indemnifies JHTSA accordingly. JHTSA shall not under any circumstances be liable for any indirect or consequential losses or damages howsoever caused or arising.

 

11. TERMINATION AND BREACH

 

11.1 If either Party breaches these Terms of Sale, the innocent Party must give ten (10) Days’ written notice to the Party in default calling on it to remedy the breach, whereafter the innocent Party shall have the right to cancel the Agreement on written notice thereof and institute a claim for damages.

11.2 Without limiting the remedies provided for in clause 11.1, in the event that the Customer fails to meet its payment obligations, JHTSA shall give written notice to the Customer calling on it to make payment as required in terms of these Terms of Sale. If the Customer does not make payment or otherwise perform this Agreement within ten (10) Days, ownership shall remain vested in JHTSA and JHTSA shall have the right to retake possession and sell the Products if they have been delivered to the Customer, in order to defray any expenses incurred by JHTSA in the procurement of the Products.

 

12. WRITTEN COMMUNICATIONS

 

The applicable legislation may require that some of the information or communications JHTSA sends to the Customer should be in writing. When using our website, you accept that communication with us will mainly be in electronic format. We will contact you by email or provide you with information by posting notices on our website. For contractual purposes, the Customer agrees to the aforementioned electronic means of communication and you acknowledge that all quotes, orders, contracts, notices, information and other communications that JHTSA provides to you electronically comply with any legal requirement that such communications be in writing.

 

13. NOTICES

 

All notices given by the Customer to JHTSA must be done so in writing via email (with a confirmation of receipt) to: info@johnsonfitness.co.za. JHTSA may give notice to you via the email you provide to us when placing an order. Notice will be deemed to have been received and properly served 24 hours after an email is sent. In proving the service of any notice, it will be sufficient to prove, in the case of an email, that such email was sent to the specified email address of the addressee on the date of sending.

 

14. TRANSFER OF RIGHTS AND OBLIGATIONS

 

14.1 The contract between the Customer and JHTSA is binding on you and JHTSA and on our respective successors and assigns.

14.2 The Customer may not transfer any warranty in respect of the Products at any time.

14.3 The Customer may not transfer, assign, encumber or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent.

14.4 JHTSA may transfer, assign, encumber, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.

 

15. EVENTS OUTSIDE OUR CONTROL

 

15.1 JHTSA will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).

15.2 A Force Majeure event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

15.2.1 Strikes, lockouts or other industrial action.

15.2.2 Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war.

15.2.3 Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemics or other natural disaster.

15.2.4 Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

15.2.5 Impossibility of the use of public or private telecommunications networks.

15.2.6 The acts, decrees, legislation, regulations or restrictions of any Government.

15.3 JHTSA’s performance under a Contract shall be deemed to be suspended for the period that the Force Majeure Event continues, and JHTSA will have an extension of time for performance of the Contract, for the duration of that period. JHTSA will use its reasonable endeavours to bring the Force
Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.

 

16. WAIVER

 

16.1 If JHTSA fails, at any time during the term of a Contract, to insist upon strict performance of any of the Customer’s obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, such failure shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

16.2 A waiver by JHTSA of any default shall not constitute a waiver of any subsequent default.

16.3 No waiver by JHTSA of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Customer in writing.

 

17. SEVERABILITY

 

If any of these terms and conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

 

18. ENTIRE AGREEMENT

 

18.1 These terms and conditions and any document expressly referred to in them represent the entire agreement between JHTSA and the Customer in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.

18.2 JHTSA and the Customer each acknowledge that, in entering into a Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these terms and conditions and as confirmed via JHTSA’s Order Confirmation.

18.3 JHTSA and the Customer shall have an appropriate remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party´s only remedy shall be for breach of contract as provided in these terms and conditions.

 

19. JHTSA’S RIGHT TO VARY THESE TERMS AND CONDITIONS

 

19.1 JHTSA have the right to revise and amend these terms and conditions from time-to-time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws or applicable legislation, any regulatory requirements and/or changes in our system’s operations or capabilities.

19.2 The Customer will be subject to the policies and terms and conditions in force at the time that you order Products from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Dispatch Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within 7 working days of receipt by you of the Products).

 

20. CONSUMER PROTECTION ACT

 

In so far as the provisions of the Consumer Protection Act of 2008 (CPA) apply to the Customer, then the provisions of these Terms of Sale shall be read in conjunction with the provisions of the CPA and to the extent that there is any conflict between the terms of these Terms of Sale and the provisions of the CPA, or to the extent that the provisions of the CPA are more favourable, then the provisions of the CPA shall prevail.

 

21. PROTECTION OF PERSONAL INFORMATION ACT AND COMMUNICATION

 

21.1 JHTSA acknowledges that the Customer’s personal information may be private and confidential. JHTSA shall protect such information, shall adhere to the provisions contained in the POPI Act and shall not process the Customer’s personal information or otherwise deal with the Customer’s personal information in a manner contrary to the provisions contained in the POPI Act or in these Terms of Sale, regard being had to the provisions contained in clause 12 above.

21.2 JHTSA shall comply with any applicable legislation regarding electronic communications with the Customer, provided that any contractual documentation exchanged between the Parties shall be required to be signed by both Parties in hard-copy format in order to be valid and enforceable.

 

22. DISPUTE RESOLUTION

 

22.1 In the event that a dispute arises out of the interpretation, application or termination of these Terms of Sale, and the dispute remains unresolved through negotiation, the Parties agree that they shall refer the dispute to final and binding private arbitration under the auspices of the Arbitration Foundation of Southern Africa (AFSA), as per AFSA’s Rules.

22.2 Either Party may refer a dispute to arbitration by giving the other Party written notice of their intention to do so.

22.3 The Parties shall appoint a single arbitrator by mutual agreement, however, should they fail to do so within five (5) Days of the notice referred to in clause 22.2, the appointment shall be made by AFSA on application from either Party. The arbitration shall be conducted and completed in Johannesburg at a venue to be determined by JHTSA.

22.4 Unless otherwise agreed in writing, the unsuccessful party shall bear the arbitrator’s costs as well as any costs incurred in conducting the arbitration proceedings.

22.5 Nothing in this clause shall preclude either Party from seeking interim and/or urgent relief from the South Gauteng Division of the High Court, to which jurisdiction the Parties consent.

 

23. LAW AND JURISDICTION

 

Contracts for the purchase of Products through JHTSA’s website will be governed by South African law. Any dispute arising from, or related to, such Contracts shall be subject to the non-exclusive jurisdiction of the Court referred to in clause 22.5, with JHTSA being entitled to elect to proceed to arbitration on the basis provided for in clauses 22.1 to 22.4.

 

24. GENERAL

 

24.1 These Terms of Sale, any quotation, order or Order Confirmation and any annexures attached hereto, constitute the sole record of the agreement of the Parties in relation to the sale and purchase of the Products, and neither Party shall be bound by any representation, promise or warranty not recorded in these documents.

24.2 Any Party who successfully enforces its rights in terms of these Terms of Sale against the other Party, shall be entitled to recover from the other Party all costs, charges and expenses of any nature, which may have been incurred in enforcing its rights, including legal costs on the scale of attorney and client, irrespective of whether any action has been instituted, and such costs shall be payable on demand. JHTSA’s liability to the Customer however shall not, in aggregate, exceed the value of the purchase order, quotation or Order Confirmation for the Products.

Johnson Health Tech South Africa (PTY) LTD
Building 10, Riversands Outlet Park, Riversands,
Johannesburg, 2191