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Terms and Conditions

 

WEBSITES AND APPS TERMS OF USE

 

In terms of section 11 of the Electronic Communications and Transactions (ECT) Act 25 of 2002 and the common law of contract, these terms and conditions are valid, binding, and enforceable against all persons that access a TFG website or App, or use the service through a TFG website or App, or any part thereof.

If you do not agree to be bound by these terms and conditions, you must leave the TFG operated website(s) or Apps immediately as further use will automatically bind you to these terms and conditions.

 

Definitions and interpretation

The clause headings in this document have been inserted for convenience only and not for interpretation purposes.

Hyperlinks herein to legal documents should be deemed part of these terms and conditions in terms of section 11(3) of the ECT Act. The fact that some or all of the hyperlinks may, from time to time, be non-operational, shall not affect the validity and interpretation of these terms and conditions.

 

a)         “Personal Information” means Personal Information as defined in the Protection of Personal Information Act 4 of 2013.

b)         “Services” means any services available on or through the Website or App;

c)          “TFG” means The Foschini Group Limited, registration number 1937/009504/06, and its subsidiaries and affiliated companies;

d)         “Website” means any website owned and operated by TFG, including the content and Service(s) available on and through the websites and any page, part or element thereof;

e)         “User” means any person who enters or uses the Website or App;

f)           “App” refers to a mobile application which runs on a mobile phone, tablet, watch or other mobile device.

 

1.        Disclaimer and limitation of liability

1.1      The Website or App User must use discretion before taking any action based on the information displayed on the Website or App.

1.2      TFG provides the Websites and Apps “as is” and it makes no warranty as to its use, availability or performance.

1.3      TFG (including its owners, employees, suppliers, Internet service providers, partners, affiliates and agents) shall not be liable for any damage, loss or liability of any nature incurred by whomever and resulting from:

1.3.1         access to the Website or App;

1.3.2         access to and use of the Services;

1.3.3         access to websites linked to the Website;

1.3.4         inability to access the Website or use the Services;

1.3.5         inability to access websites linked to the Website;

1.3.6         content available on the Website; or

1.3.7         any other reason not directly related to TFG’s gross negligence.

1.4      The Websites and Apps have not been compiled to meet the User's individual requirements. It is the responsibility of the User to satisfy him/herself, prior to entering into this agreement with TFG, that the content available from and through the Website or App meets the User's individual requirements and is compatible with the User's device, computer hardware and/or software.

1.5      Information, ideas and opinions expressed on the Websites and App should not be regarded as professional advice or the official opinion of TFG. Users are encouraged to obtain professional advice before taking any course of action related to the information, ideas or opinions expressed on the Website or App.

1.6      TFG does not make any warranties or representations that content and Services available from the Websites and Apps shall in all cases be true, correct or free from any errors. TFG shall take all reasonable steps to ensure the quality and accuracy of content available from the Websites and Apps.

1.7      TFG does not make any warranties or representations that the Websites and Apps shall be available at all times. Users acknowledge that the Websites and Apps may be unavailable due to updates or other causes beyond the reasonable control of TFG, including, but not limited to, virus infection, unauthorised access (hacking), power failure or other “acts of God.”

1.8      TFG reserves the right to hold a User liable for any losses suffered by TFG or its customers due to a cybercrime committed by the User on any of TFG’s Websites or Apps.

 

2.        General

TFG consists of various retails brands and have stores in South Africa, the rest of Africa, United Kingdom, Australia and New Zealand.

 

3.        Allowed use and licence

3.1      TFG licenses the User to view, download and print the content of the Websites and Apps provided that such use is for private, personal and/or educational purposes only.

3.2      Content from the Websites and Apps may not be used or exploited by Users for any commercial or non-private purposes without the prior written consent of TFG.

3.3      Users may only access and browse the Websites and Apps for legitimate personal purposes and may not use the Website for:

3.3.1         Harmful purposes;

3.3.2         Illegal purposes;

3.3.3         Disclosing, sharing or publishing material that may be offensive, defamatory, regulated, infringement of copyright, incorrect, untrue, prohibited or damaging to any person; and/or

3.3.4         The creation, storage and sending of unsolicited commercial communications.

3.4      The caching of the Websites and Apps shall only be allowed if:

3.4.1         The purpose of the caching is to make the onward transmission of the content from the Website and Apps more efficient;

3.4.2         The cached content is not modified in any manner whatsoever;

3.4.3         The cached content is updated at least every 12 (twelve) hours; and

3.4.4         The cached content is removed or updated when so required by TFG.

3.5      If any User uses content from the Websites or Apps in breach of the provisions detailed herein:

3.5.1         TFG reserves the right to claim damages from the User;

3.5.2         TFG reserves the right to institute criminal proceedings against the User; and

3.5.3         TFG shall not be liable, in any manner whatsoever, for any damage, loss or liability that results from the use of such content by the User or any third party who obtained any content from the User.

3.6      Hyperlinks to the Website from any other source shall be directed to the home page of the Website. Links beyond the TFG home page may only be used with TFG’s prior written consent.

3.7      Users may quote small and reasonable amounts of content available from the Websites and Apps and only if such a quote is placed in inverted commas and acknowledged.

3.8      No person may, without the prior written consent of TFG, frame the Websites or Apps in any manner whatsoever.

3.9      Apart from good faith search engine operators and use of the search facility provided on the Website or Apps by Users, no person may use or attempt to use any technology or other apps (including web crawlers, robots or web spiders) to search, collect or copy content from the Websites or Apps for any purpose whatsoever, without the prior written consent of TFG.

3.10    E-mail addresses, names, telephone numbers, and fax numbers published on the Website or Apps may not be incorporated into any database used for electronic marketing or similar purposes. No permission is given or should be implied that information on the Websites or Apps may be used to communicate unsolicited communications to TFG and all rights detailed in section 45 of the ECT Act are reserved.

3.11    All licences and/or permissions granted in terms of this clause 3 are provided on a non-exclusive and non-transferable basis and may be suspended or cancelled by TFG at any time without prior notice or reason.

 

 4.       Intellectual property rights

4.1      All licences and/or permissions granted in terms of this clause are provided on a nonexclusive and non-transferable basis and may be terminated or cancelled by TFG at any time without prior notice or reason.

4.2      All intellectual property on the Websites and Apps, including but not limited to content, trademarks (or any confusingly similar trademarks), trade names, logos, pictures, video, downloads, domain names, patents, design elements, software, source code, meta tags, databases, text, graphics, icons and hyperlinks are the property of or licensed to TFG and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights licensed to the User in clause 3, all other rights to intellectual property on the Websites and Apps are expressly reserved.

4.3      No person shall amend, copy, use, decompile and/or reverse engineer the source code of the Websites or Apps.

4.4      No person may use logos, icons, photos, pictures, graphics or trademarks and the like from the Websites or Apps as hyperlinks or for other purposes without TFG’s prior written consent.

 

5.        Software and equipment

It is the responsibility of the User to acquire and maintain, at his/her own expense, the necessary devices, data, computer hardware, software, communication lines and internet access accounts required to access the internet, the Apps, the Website and/or download content from the Website or Apps.

 

6.        Disclosures required by section 43 of the ECT act

Access to and use of the Website and App may be classified as “electronic transactions” as defined in terms of the ECT Act and therefore Users have the rights detailed in Chapter 7 of the ECT Act and TFG has, amongst others, the duty to disclose the following information:

·       Full name and legal status: The Foschini Group Limited

·       Registration number: 1937/009504/06

·       Physical address: Stanley Lewis Centre, 340 Voortrekker Road, Parow East, 7500, Cape Town, South Africa.

·       Postal address: PO Box 6020, Parow East, 7501, Cape Town, South Africa

·       Telephone number: +27 21 938 1911

·       Website address: www.tfg.co.za

·       E-mail address: customerservices@tfg.co.za

·       Membership of self-regulatory bodies: Direct Marketing Association of South Africa (DMA).

·       Code of conduct: Direct Marketing Association Code of Conduct. The User may access their website and download the Code of Conduct.

·       Physical address for receipt of legal service: Stanley Lewis Centre, 340 Voortrekker Road, Parow East, 7500, Cape Town, South Africa (Attention: Legal Department).

·       Directors: Refer to www.tfglimited.co.za for a full list of the TFG board of directors.

·       Access to information: Refer to the TFG information manual which is available on the “Access to Information” link at the bottom of the Website.

·       Alternative dispute resolution: Subject to urgent and/or interim relief, all disputes regarding:

i)            access and use of the Website;

ii)           the inability to access the Website;

iii)          the Services and content available from the Website; or

iv)          these terms and conditions,

shall be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa and such arbitration proceedings shall be conducted in Cape Town in English. The arbitration ruling shall be final and the unsuccessful party shall pay the costs of the successful party on a scale as between attorney and own client.

 

7.        Changes and amendments

TFG reserves the right, in its sole and absolute discretion, to do any of the following, at any time without prior notice or justification:

7.1      change these terms and conditions;

7.2      change the content and/or Service available from the Websites and/or Apps;

7.3      discontinue any aspect of the Websites, Apps or Service(s) available from the Websites or Apps; and/or

7.4      change the software and hardware required to access and use the Websites and Apps;

7.5      to delete the Website and/or Apps.

 

8.        Privacy

Please refer to the Privacy Statement for information on how TFG processes Users’ Personal Information.

 

9.        Ownership

TFG owns and retains all rights to de-identified statistical information collected and compiled by TFG.

 

10.      Hyperlinks to third party sites

10.1    TFG may provide hyperlinks to websites not controlled by TFG (“target sites”) and such hyperlinks do not imply any endorsement, agreement on or support of the content, products and/or Services of such target sites.

10.2    TFG does not editorially control the content, products and/or Services on target sites and shall not be liable, in any manner whatsoever, for the access to, inability to access, use and inability to use or content available on or through target sites.

 

11.      Security

11.1    TFG shall take all reasonable technical and organizational steps to secure the content of the Websites and Apps and the Personal Information provided by and collected from Users, from unauthorised access and/or disclosure. However, TFG does not make any warranties or representations that content shall be entirely safe or secure.

11.2    Users may not deliver or attempt to deliver, whether on purpose or negligently, any damaging code, such as computer viruses, robots or spy ware, to the Websites, Apps or the server and computer network that support the Websites and/or App.

11.3    Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to the Websites or Apps, whether on purpose or negligently, shall, without any limitation, indemnify and hold TFG harmless against any and all liabilities, damages, risks and losses that TFG and its business partners, customers or affiliates may suffer as a result of such delivery, attempt or damaging code.

11.4    Users may not develop, distribute or use any device or programme designed to breach or overcome the security measures of the restricted pages, products and Services on the Websites or Apps and TFG reserves the right to claim damages from any and all persons involved, directly and indirectly, in the development, use and distribution of such devices or programmes.

11.5    Users who commit any of the offences detailed in sections 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable for all resulting liabilities, losses, destruction or damages suffered and/or incurred by TFG and its business partners, customers or affiliates due to or related to these illegal actions.

 

12.      Removal and correction of content

Users are encouraged to report untrue, inaccurate, defamatory, illegal, infringing and/or harmful content available from the Websites or Apps to TFG and TFG undertakes to correct and/or remove such content or any part thereof if the person reporting such content provides reasonable grounds to prove the alleged nature of the content.

 

13.      Interception of communications

13.1    Subject to the provisions of the Regulation of Interception of Communications Act 70 of 2002 (“RICA”), the User agrees to TFG’s right to intercept, block, filter, read, delete, disclose and use all communications (including all “data messages” as defined in the ECT Act) sent or posted by the User to the Websites, Apps or TFG’s employees.

13.2 The User agrees and acknowledges that the consent provided by the User in clause 13.1 satisfies the “writing” requirement as detailed in the ECT Act and RICA.

 

14.      Entire agreement and severability

14.1    These terms and conditions constitute the entire agreement between TFG and the User with regard to the subject matter herein and shall take precedence over any disclaimers and/or legal notices attached to any communications and/or postings received by TFG from the User.

14.2    Any failure by TFG to exercise or enforce any right or provision shall in no way constitute a waiver of such right or provision.

14.3    In the event that any term or condition detailed herein is found unenforceable or invalid for any reason, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall remain enforceable and applicable.

 

15.      Agreement in terms of section 21 of the ECT act

The User and TFG agree that:

15.1    the User shall be bound to these terms and conditions and such agreement is concluded in Cape Town (South Africa) at the time the User enters any of the Websites or accesses or downloads any of the Apps for the first time;

15.2    the User agrees and warrants that data messages (e.g. sms and email) that are sent to TFG from a computer, IP address or mobile device normally used by or owned by the User, were sent and/or authorised by the User personally;

15.3    electronic signatures, encryption and/or authentication are not required for valid electronic communications between the User and TFG; and

15.4    when the User sends an email or message through the Websites or Apps to TFG, it is deemed to have been received when TFG replies to the message. An auto-response from a Website or App is not regarded as a reply;

15.5    when TFG sends an email to the User, it is deemed to have been received when the User is capable of downloading the email.

 

16.      Applicable and governing law

The Websites and Apps are hosted, controlled and operated from South Africa and therefore, subject to the Alternative Dispute Resolution provisions above, South African law enforced by the South African courts governs the use of, or inability to use, the Websites and Apps, its content, Services, products and these terms and conditions.

 

17.      Disclaimer

TFG disclaims all liability for any loss, damage or expense however caused, arising from the use of or reliance upon the information provided through this service and does not guarantee the completeness or accuracy of the information.

 

18.      Legal costs

 

TFG shall not be liable for costs incurred by Users to obtain professional advice relating to these terms and conditions.

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