The following provisions are drawn to your attention if the Consumer Protection Act 68 of 2008 ("the CPA") ap-plies to this Acknowledgement, Indemnity and Waiver:
•In terms of clause 3.1 there is an acknowledgment by you inter alia regarding the risks associated with the use of the Products by a User, confirmation that you fully understand how the Products work and are to be used and that wish you wish to proceed to make use the Products at your own risk, the effect of which is that you make an acknowledgement of fact;
•In terms of clause 3.2 there is a waiver and abandonment of any Claim by a User against Chilled Squirrel and an indemnity in favour of Chilled Squirrel from and against any liability in respect of any Claim of a User and any Claim of any Third Parties against Chilled Squirrel, the effect of which is that a User may have limited or no recourse against Chilled Squirrel or may be liable to Chilled Squirrel in the circum-stances referred to aforesaid;
•In terms of clause 3.4 there is an indemnity in favour of Chilled Squirrel from and against any and all costs and expenses (including legal costs on the scale as between attorney and own client) sustained or in-curred by Chilled Squirrel in connection with any Claim against Chilled Squirrel, the effect of which is that you may be liable to Chilled Squirrel for payment of certain costs and expenses.
1.For purposes of this acknowledgement, indemnity and waiver:
1.1.“Claim” means any claim for loss, damage (whether direct, indirect, consequential or otherwise), cost or expense arising, directly or indirectly, as a result of, or in respect of:
1.1.1.your use of the Products; and/or
1.1.2.our provision of the Services; and/or
1.1.3.where we supply the Products to you and you are acting as a sales agent, reseller or distributor of the Products; and/or
1.1.4.any other act or omission of Chilled Squirrel (whether negligent or otherwise), and whether as a result of any injury, illness, harm, death, damage to property or damages of whatsoever nature and howsoever arising;
1.2.“Chilled Squirrel” and/or "us" and/or "our" means Chilled Squirrel (Pty) Ltd (Registration Number: 2014/016572/07) and its holding companies, subsidiaries, related or inter-related parties, officers, direc-tors, employees, agents and associates;
1.3.“Products” means and includes (but is not limited to):
1.3.1."E-Bikes" being a conventional pedal powered bicycle to which an electronic motor and battery have been fitted and includes electric "fat bikes" and electric "mountain bikes"; and/or
1.3.2.components utilised in the manufacture and/or customisation of E-Bikes such as electronic mo-tors, batteries, LCD display/power consoles and safety thumb throttles; and/or
]1.3.3.accessories such as battery chargers, handle grips, seats and branded clothing; and/or
1.3.4.any other products, components and accessories developed and/or supplied by us from time to time; and “Product” means any of the Products, as the context may require;
1.4. ”Services" means the provision of any services directly or indirectly associated with the manufacture and/or supply of the Products and includes (but is not limited to) providing advice on selecting the appropriate Product for you, converting a conventional pedal powered bicycle to an E-Bike, customising an E-Bike to your specifica-tions and riding preferences and/or any other services developed and/or supplied by us from time to time
1.5 “Third Parties” means every person purchasing our Products from or through you and/or having access to or using the Products by arrangement with you, or at your invitation, including, for the avoidance of doubt, the parent(s) or legal guardian(s) of any Third Party who is a minor or any Third Party who is under any form of legal disability and “Third Party” shall mean any one of them;
1.6 “User” and/or "you" and/or "your" means any person who purchases our Products and/or engages our Services from time to time, including any parent(s) or legal guardian(s) of any minor or any legal guardian(s) of any person under any form of legal disability.
2. Please read the terms and conditions of this acknowledgement, indemnity and waiver carefully and make sure you understand them before purchasing any Products and/or engaging our Services. Please do not purchase any Products and/or engage our Services if you do not agree to the terms and conditions of this acknowledge-ment, indemnity and waiver. If you do continue to purchase any Products and/or engage our Services, doing so will be confirmation that you agree to the terms and conditions of this acknowledgement, indemnity and waiver and agree to be bound by them. This acknowledgement, indemnity and waiver must be read with our standard terms and conditions, which are available on our website at https://chilled-squirrel.myshopify.com/ ("Terms and Conditions”).
3. I/We hereby:
3.1 record that I/we, to the maximum extent reasonably possible:
3.1.1acknowledge that there may be risks associated with the use of the Products, that bicycling and re-lated activities can be hazardous and may result in personal injury or even death;
3.1.2 acknowledge that Chilled Squirrel has fully explained to me the various Product options available to me, the benefits and risks associated with any specifications and riding preferences selected by me includ-ing any instructions I may have furnished in respect of the conversion of a conventional pedal powered bicycle to an E-Bike and/or any customisation of an E-Bike;
3.1.3 acknowledge that I have received instruction and satisfactory answers to any questions regarding the use and functionality of the Products;
3.1.4 acknowledge that in the case of new Products, I have received a copy of the manufacturer’s written instructions and warranty;
3.1.5 confirm that I have carefully considered and understand the fact, nature and potential risks associat-ed with the use of the Products;
3.1.6 acknowledge that I make use of the Products entirely at my own risk; ]
3.1.7 confirm that Chilled Squirrel is not responsible for any modifications made by me to the Products after delivery thereof;
3.1.8 confirm that if at any time the Products do not appear to be functioning properly, I will stop using it immediately and return it for inspection and possible repair or adjustment;
3.2 to the maximum extent permitted in law, waive and abandon any Claim personal to me/us against Chilled Squirrel and/or waive and abandon any Claim I may have against Chilled Squirrel and indemnify Chilled Squirrel and hold it harmless from and against any liability in respect of any Claim by me and any Claim of any Third Parties against Chilled Squirrel;
3.3 undertake to make payment of any Claim against Chilled Squirrel within 7 (Seven) days of written de-mand from Chilled Squirrel;
3.4 indemnify Chilled Squirrel and hold it harmless from and against any and all costs and expenses (in-cluding legal costs on the scale as between attorney and own client) sustained or incurred by Chilled Squirrel in connection with any Claim against Chilled Squirrel.
4. This acknowledgement, indemnity and waiver must be read in conjunction with any applicable provisions of our Terms and Conditions relating to warranties, privacy, data protection, use and disclosure of informa-tion and any applicable law. ]
5. In the event of any dispute in respect of any aspect of this acknowledgement, indemnity and waiver, such dispute will be dealt with in terms of the dispute resolution provisions contained in our Terms and Condi-tions.
6. I/we warrant, represent and undertake to Chilled Squirrel that where I/we are purchasing any Products from Chilled Squirrel (including where I/we are acting as sales agents, resellers or distributors of the Prod-ucts) and/or engaging Chilled Squirrel to provide any Services on behalf of a Third Party, I/we are the duly authorised agents of such Third Party. Furthermore, I/we will provide a copy of this acknowledgement, in-demnity and waiver and Chilled Squirrel’s Terms and Conditions to such third party together with all perti-nent instructions, warnings and information relating to the use of the Products to such Third Party.
7. The provisions of this acknowledgement, indemnity and waiver shall be binding on my/our estate(s), ex-ecutors, administrators, liquidators, trustees, successors in title, permitted assigns of the parties and refer-ence to any party shall be deemed to include such party's estate, executors, administrators, trustees, succes-sors in title, permitted assigns or liquidators, as the case may be.
8. No term or condition of this acknowledgement, indemnity and waiver is intended to breach any peremp-tory provisions of the CPA and any regulations promulgated thereunder ("Prohibited Provision"). Any breach of any such Prohibited Provision shall be governed by the provisions of clause 9 mutatis mutandis.
9. Each provision of this acknowledgement, indemnity and waiver shall be considered severable and if, for any reason, any such provision is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation (including, without limitation, the CPA or any regulations promulgated thereunder) or in terms of a final, binding judgment issued by any court, it shall not impair the operation of, or have any ef-fect upon such other portions of this acknowledgement, indemnity and waiver as may otherwise remain valid or intelligible, which shall continue to be given full force and effect and bind the parties hereto.
10. This acknowledgement, indemnity and waiver may be amended, varied and/or modified by Chilled Squirrel at any time and such amendment variation and/or modification shall be effective immediately upon publication thereof on the reverse side of any purchase order and/or posting thereof on our website at https://chilled-squirrel.myshopify.com/. Accordingly, the conclusion of any purchase order whether in-store on via our website at https://chilled-squirrel.myshopify.com/ will be deemed to be acceptance by you of any such modified acknowledgement, indemnity and waiver.
11. No indulgence, leniency or extension of time granted by a party shall constitute a waiver of any of that party's rights under this acknowledgement, indemnity and waiver and, accordingly, that party shall not be precluded as a consequence of having granted such indulgence, from exercising any rights against any other party which may have arisen in the past or which might arise in the future.
12. This acknowledgement, indemnity and waiver, together with our Terms and Conditions, contains the entire agreement between Chilled Squirrel and you in relation to the subject matter hereof and no party will be bound by any undertakings, representations, warranties promises, terms or conditions or the like not recorded herein. Save as contemplated in clause 10, no alteration, cancellation, variation of, or addition hereto will be of any force or effect.
13. This acknowledgement, indemnity and waiver will be governed by and construed in accordance with South African law.