- This website can be accessed at www.smirk.co.za, related mobi-sites and software applications (the “Website”) and is owned and operated by Smirk (“Smirk”, “we”, “us” and “our”).
- These Website Terms and Conditions (“Terms and Conditions”) govern the ordering, Sale and delivery of Goods, and the use of the Website.
- 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 contemplated below (“registered user”). By using the Website and by clicking on the “Proceed To Payment” button on the Website, as may be applicable, you acknowledge that you have read and agree to be bound by these Terms and Conditions.
- The Website enables you to shop online for face masks, filters and adjustable clips (“Goods”).
2. Important Notice
- These Terms and Conditions apply to users who are consumers for purposes of the Consumer Protection Act, 68 of 2008 (the “CPA”).
- These Terms and Conditions contain provisions that appear in similar text and style to this clause and which –a) may limit the risk or liability of Smirk or a third party; and/or
b) may create risk or liability for the user; and/or
c) may compel the user to indemnify Smirk or a third party; and/or
d) serves as an acknowledgement, by the user, of a fact.
- Your attention is drawn to these Terms and Conditions because they are important and should be carefully noted.
- If there is any provision in these Terms and Conditions that you do not understand, it is your responsibility to ask Smirk to explain it to you before you accept the Terms and Conditions or continue using the Website.
- 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 Smirk in terms of the CPA.
- Smirk 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.
- The labels on Smirk products are for references purposes – Smirk products have a variety of colour labels, and your order might have a different colour label than displayed on the website.
- The labels on Smirk products are for references purposes – Smirk products have a variety of colour labels, and your order might have a different colour label than displayed on the website.
- No collection can be taken place at the Smirk warehouse. All orders placed will be delivered to the selected address.
- The current sizing chart on the Smirk website is applicable from 25 May 2020.
- Due to hygienic reasons, no returns or refunds will be given.
- Kindly ensure you choose the correct size mask before making your purchase, as we have a no return policy.
4. Use of the Website
- You must provide billing information, which includes personal details to Smirk, to order Goods on the Website.
- For security purposes, you agree to enter the correct billing information whenever ordering Goods.
- You agree that, once the correct billing information relating has been entered, you will be liable for payment of such order, save where the order is cancelled by you in accordance with these Terms and Conditions.
- You agree to notify Smirk immediately upon becoming aware of or reasonably suspecting any unauthorised use of your billing and personal information and to take steps to mitigate any resultant loss or harm.
- 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.
- You agree that you will not in any way use any device, software or other instruments 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, spider, other automatic devices, or manual process to monitor, copy, distribute or modify the Website or the information contained herein, without the prior written consent from an authorised Smirk representative (such consent is deemed given for standard search engine technology employed by Internet search websites to direct Internet users to this Website).
- You may not use the Website to distribute defamatory material, offensive, contains or amounts to hate speech or is otherwise unlawful.
- 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 Smirk representative.
5. Conclusion of Sales and Availability of Stock
- Users may place orders for Goods, which Smirk may accept or reject. Whether or not Smirk accepts 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 Smirk for the Goods.
- NOTE: Smirk will indicate the acceptance of your order by delivering the Goods to you or allowing you to collect them, and only at that point will an agreement of Sale between you and Smirk or the Third Party Seller come into effect (the “Sale”). This is regardless of any communication from Smirk stating that your order or payment has been confirmed. Smirk will indicate the rejection of your order (by Smirk itself) by cancelling it and, as soon as possible thereafter, refunding you for any amount already paid.
- Prior to delivery or your collection of the Goods, you may cancel an order at any time provided you do so before receiving a dispatch or delivery notice. After delivery or your collection of the Goods, you may return the Goods only in accordance with the Returns Policy.
- You acknowledge that stock of all Goods on offer is limited and that pricing may change at any time without notice to you. In the case of Goods for Sale by Smirk, Smirk 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 you have placed an order, Smirk will notify you, and you will be entitled to a refund of any amount already paid by you for such Goods.
- We are committed to providing secure online payment facilities. All transactions are encrypted using appropriate encryption technology.
- Whether the Goods are for Sale by Smirk, payment can be made for Goods via -a) debit card;
b) credit card: where payment is made by credit card, we may require additional information in order to authorise and/or verify the validity of payment. In such cases we are entitled to withhold delivery until such time as the additional information is received by us and authorisation is obtained by us for the amounts. If we do not receive authorisation your order for the Goods will be cancelled. You warrant that you are fully authorised to use the credit card supplied 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 services used on the Website;
c) direct bank deposit or electronic funds transfer: if you pay via direct bank deposit or electronic funds transfer, payment must be made within 5 (five) days of placing your order. Smirk will not accept your order if payment has not been received;
d) Instant EFT;
3. You may contact us to obtain a full record of your payment. We will also send you email communications about your order and payment.
4. Once you have selected your payment method, you will be directed to a link to a secure site for payment of the applicable purchase price for the Goods.
7. Delivery of goods
- Smirk offers 1 (one) method of delivery of Goods to you. You may select delivery via courier.
- Deliveries on any purchase from the Website can be expected within 5 to 7 business days from the date of purchase, which excludes public holidays and weekends. You will receive a tracking code to track your order when the courier has collected your Goods from the Smirk offices.
- Our delivery charges are subject to change at any time, without prior notice to you. You will see the applicable delivery charges in your cart when you check out. Where it accepts your order, Smirk will deliver the Goods to you as soon as reasonably possible, but no later than 7 (seven) days of receipt of your payment (“Delivery Period”). We will notify you if we are unable to deliver the Goods during the Delivery Period. You may then, within 3 (three) days of receiving such notification elect whether or not to cancel your order for the Goods. If you select to cancel your order, we will reimburse you for the purchase price.
- Smirk’s obligation to deliver a product to you is fulfilled when we deliver the product to the physical address nominated by you for delivery of the order. Smirk is not responsible for any loss or unauthorised use of a product after it has delivered the product to the physical address nominated by you.
- 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.
- Smirk shall not be bound by any incorrect information regarding our Goods displayed on any third-party websites.
9. Gift Vouchers/Cards & Coupons
- Smirk may from time to time make physical or electronic gift vouchers (“Gift Vouchers/Cards”) and promotional coupons or discounts (“Coupons”) available for use on the Website towards the purchase of Smirk Goods. Gift Vouchers/Cards and Coupons can only be redeemed while they are valid, and their expiry dates cannot be extended. More specifically:
- Gift Vouchers/Cards
a) Gift Vouchers/Cards that are purchased by registered users are valid for 3 (36 months) years after Sale. Gift Vouchers that Smirk gives away for free are valid for the period stated thereon. In each case, if your Voucher/Card has not been used within that period, it will expire.
b) Gift Vouchers/Cards cannot be used to buy other Gift Vouchers or Coupons. They do not accrue interest and are not refundable for cash once purchased. If your Gift Voucher/Card value is insufficient for the order you wish to place; you may make up the difference by paying via one of our other payment methods.
c) Smirk is not responsible for any harm due to the loss, unauthorised use or unauthorised distribution of a Gift Voucher/Card after it has sent the Gift Voucher/Card to you or the email address nominated by you.
a) There are two types of Coupons; a Coupon with a fixed amount of a discount, e.g. R100 off (“Fixed Coupon“), and a Coupon with a percentage discount, e.g. 10% off (“Percentage Coupon“).
b) Coupons are issued in Smirk’s sole discretion, and we are entitled at any time to correct, cancel or reject a Coupon for any reason (including without limitation where a Coupon has been distributed in an unauthorised manner). Users do not have a right to Coupons, and Coupons cannot be earned. Coupons are issued under specific terms and conditions regulating when and how they may be used.
c) As a general rule, and unless specified otherwise on the specific Coupon itself:
i. each Coupon can only be used once;
ii. only one Coupon can be used per order;
iii. only one Coupon can be used on the Website per person per promotion/campaign;
iv. Percentage Coupons may only be redeemed on purchases with a total cart value of less than R1,000;
v. where a Percentage Coupon has been used, and you wish to cancel any items in the order prior to making payment, the entire order must be cancelled. You will be issued with a new Percentage Coupon and will need to place the order again, without the item that you wished to cancel;
vi. a Coupon must be used at check-out – it cannot be used later on existing orders; and
vii. the value of the Coupon will be set off against the value of your shopping basket and the balance remaining, if any, will be payable by you.
- Coupons cannot be used to buy Gift Vouchers/Cards or other Coupons and cannot be exchanged or refunded for cash or credit. Smirk is not responsible for any harm due to the loss, unauthorised use or distribution of a Coupon.
- If for any reason a Coupon does not reflect on the final amount due from you at check-out, you can contact us to confirm if the Coupon is still valid. If Smirk confirms that the Coupon is still valid and you have already placed your order, you can choose whether to cancel the order and place it again with the Coupon, or you can use the Coupon on your next order within the limitations of the specific Coupon’s terms and conditions.
- You may be required to submit the original communication containing the Coupon code, and any other information reasonably requested by Smirk before you are able to use a Coupon.
- We respect your privacy and will take reasonable measures to protect it, as more fully detailed below.
- Should you decide to use the Website, we may require you to provide us with personal information which includes but is not limited to –
a) your name and surname;
b) your email address;
c) your physical address; and
d) your mobile number.
- Should your personal information change, please inform us and provide us with updates to your personal information as soon as reasonably possible to enable us to update your personal information.
- You may choose to provide additional personal information to us, in which event you agree to provide accurate and current information, and not to impersonate or misrepresent any person or entity or falsely state or otherwise misrepresent your affiliation with anyone or anything.
- Subject to clause 10.6 below, we will not, without your express consent:
a) use your personal information for any purpose other than as set out below:
i. in relation to the ordering, Sale and delivery of Goods;
ii. to contact you regarding current or new Goods or services or any other goods offered by us or any of our divisions, affiliates and/or partners (unless you have opted out from receiving marketing material from us);
iii. to inform you of new features, special offers and promotional competitions offered by us or any of our divisions, affiliates and/or partners (unless you have opted out from receiving marketing material from us); and
iv. to improve our product selection and your experience on our Website by, for example, monitoring your browsing habits or tracking your sales on the Website; or
b) disclose your personal information to any third party other than as set out below:
i. to our employees and/or third-party service providers who assist us to interact with you via our Website, email or any other method, for the ordering of Goods or when delivering Goods to you, and thus need to know your personal information in order to assist us to communicate with you properly and efficiently;
ii. to our divisions, affiliates and/or partners (including their employees and/or third-party service providers) in order for them to interact directly with you via email or any other method for purposes of sending you marketing material regarding any current or new goods or services, new features, special offers or promotional items offered by them (unless you have opted out from receiving marketing material from us);
iii. to law enforcement, government officials, fraud detection agencies or other third parties when we believe in good faith that the disclosure of personal information is necessary to prevent physical harm or financial loss, to report or support the investigation into suspected illegal activity, or to investigate violations of these Terms and Conditions;
iv. to our service providers (under contract with us) who help with parts of our business operations (fraud prevention, marketing, technology services, etc.). However, our contracts dictate that these service providers may only use your information in connection with the services they perform for us and not for their own benefit; and
v. to our suppliers in order for them to liaise directly with you regarding any faulty Goods you have purchased, which requires their involvement.
- We are entitled to use or disclose your personal information if such use or disclosure is required in order to comply with any applicable law, subpoena, order of court or legal process served on us, or to protect and defend our rights or property. In the event of fraudulent online payment, Smirk is entitled to disclose relevant personal information for criminal investigation purposes or in line with any other legal obligation for disclosure of the personal information which may be required of it.
- We will ensure that all of our employees, third-party service providers, divisions, affiliates and partners (including their employees and third-party service providers) having access to your personal information are bound by appropriate and legally binding confidentiality obligations in relation to your personal information.
8. Ratings and Reviews: When you provide a rating or review of a Product, you consent to us using that rating or review as we deem fit, including without limitation on the Website, in newsletters or other marketing material. The name that will appear next to that rating or review is your First Name. If you do not agree to this, please do not put any ratings or reviews on the Website. We will not display your Last Name, nor any of your contact details, with a rating or review.
- We will –
a) treat your personal information as strictly confidential, save where we are entitled to share it as set out in this policy;
b) take appropriate technical and organisational measures to ensure that your personal information is kept secure and is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access;
c) provide you with access to your personal information to view and/or update personal details;
d) promptly notify you if we become aware of any unauthorised use, disclosure or processing of your personal information;
e) provide you with reasonable evidence of our compliance with our obligations under this policy on reasonable notice and request; and
f) upon your request, promptly return or destroy any and all of your personal information in our possession or control, save for that which we are legally obliged to retain.
- We will not retain your personal information longer than the period for which it was originally needed, unless we are required by law to do so, or you consent to us retaining such information for a longer period.
- Smirk undertakes never to sell or make your personal information available to any third party other than as provided for in this policy.
- Whilst we will do all things reasonably necessary to protect your rights of privacy, we cannot guarantee or accept any liability whatsoever for unauthorised or unlawful disclosures of your personal information, whilst in our possession, made by third parties who are not subject to our control, unless such disclosure is as a result of our gross negligence.
- Subject to clause 10.6 below, we will not, without your express consent:
11. Changes to these Terms and Conditions
- Smirk 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.
- 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.
12. Electronic Communications
13. Ownership and Copyright
- The contents of the Website, including any material, information, data, software, icons, text, graphics, layouts, 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. The Website Content is the property of Smirk, its advertisers and/or sponsors and/or is licensed to Smirk.
- You will not acquire any right, title or interest in or to the Website or the Website Content.
- Any use, distribution or reproduction of the Website Content is prohibited unless expressly authorised 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.
- Where any of the Website Content has been licensed to Smirk 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.
- 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.
- Whilst Smirk takes reasonable measures to ensure that the content of the Website is accurate and complete, Smirk 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. If any such representations or warranties are made by Smirk’s representatives, Smirk shall not be bound thereby.
- Smirk disclaims liability for any damage, loss or expenses, 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.
- 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.
- Any views or statements made or expressed on the Website are not necessarily the views of Smirk, its directors, employees and/or agents.
- In addition to the disclaimers contained elsewhere in these Terms and Conditions, Smirk 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 Smirk, its employees, agents or authorised representatives. Smirk 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.
15. Linking to Third-party Websites
- 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 Smirk is not responsible for the practices and/or privacy policies of those Third Party Websites or the “cookies” that those sites may use.
- 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.
16. Limitation of Liability
- Smirk 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 Smirk, its employees, agents or authorised representatives. You are encouraged to contact us to report any possible malfunctions or errors.
- SMIRK 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.
- YOU HEREBY INDEMNIFY SMIRK 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.
17. Availability and Termination
- We will use reasonable endeavours to maintain the availability of the Website, except during scheduled maintenance periods, and are entitled to discontinue providing the Website or any part thereof with or without notice to you.
- Smirk may in its sole discretion terminate, suspend and modify this Website, with or without notice to you. You agree that Smirk 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, to the extent possible.
- 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, this may (in our sole discretion with or without notice to you) lead to a suspension and/or termination of your access to the Website without any prejudice to any claims for damages or otherwise that we may have against you.
- Smirk is entitled, for purposes of preventing suspected fraud and/or where it suspects that you are abusing the Website and/or have created multiple user profiles to take advantage of a promotion or Coupon intended by Smirk to be used once-off by you, to blacklist you on its database (including suspending or terminating your access to the Website), refuse to accept or process payment on any order, and/or to cancel any order concluded between you and Smirk, in whole or in part, on notice to you. Smirk shall only be liable to refund monies already paid by you (see Smirk’s Returns Policy in this regard) and accepts no other liability which may arise as a result of such blacklisting and/or refusal to process any order.
- At any time, you can choose to stop using the Website, with or without notice to Smirk.
- Smirk 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.
- You may not cede, assign or otherwise transfer your rights and obligations in terms of these Terms and Conditions to any third party.
- Any failure on the part of you or Smirk to enforce any right in terms hereof shall not constitute a waiver of that right.
- If any term or condition contained herein is declared invalid, the remaining terms and conditions will remain in full force and effect.
- 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.
- These Terms and Conditions contain the whole agreement between you and Smirk and no other warranty or undertaking is valid unless contained in this document between the parties.