1. Introduction

1.1. Welcome to Kaya Living. The following terms and conditions (“Terms and Conditions”) govern your use of our website (accessible at www.kayaliving.co.za ) (“the Website”) owned and operated by Kaya Living (Pty) Ltd [2024/563947/07] (“Kaya Living”), as well as the ordering, purchase and delivery of any products from Kaya Living (“Products”).

1.2. These Terms and Conditions are binding on and applicable to every user that accesses this Website. By clicking “I agree”, or by using or accessing our Website, you confirm that you have fully read, understood, and agreed to all of the Terms and Conditions contained herein. If for any reason you do not agree to any of the Terms and Conditions, you may not use or access the Website.

1.3. These Terms and Conditions contain provisions that:–

1.3.1. may limit the risk or liability of Kaya Living; and/or
1.3.2. may create risk or liability for you; and/or
1.3.3. may compel you to indemnify Kaya Living; and/or
1.3.4. serve as an acknowledgment by you of a fact.

1.4. Your attention is drawn to these Terms and Conditions because they are important and should be carefully noted.

2. Eligibility

2.1. By using the Website and placing an order with Kaya Living, you warrant and represent that you are 18 (eighteen) years of age or older and are legally capable of and duly authorised to enter into binding contracts with Kaya Living.

2.2. If you are using the Website on behalf of any person or entity, you warrant and represent that you are authorised to accept the Terms and Conditions on such person or entity’s behalf, and that such person or entity agrees to be responsible to Kaya Living if you or such person or entity violates these terms.

3. Availability, Pricing and Product Descriptions

3.1. All orders are subject to Kaya Living’s acceptance of your order. We reserve the right to accept or reject any order at our sole discretion. Whether we accept your order is dependent upon the availability of the Products and our receipt of your payment for the Products.

3.2. All prices on the Website are listed in South African Rand and include applicable taxes. Kaya Living reserves the right to adjust prices as we may determine in our sole discretion, at any time and without notice.

3.3. We strive to ensure that all product descriptions and images are accurate. However, minor variations in colour, texture, or appearance may occur due to the handcrafted nature of our Products.

4. Payment

4.1. Payment must be made at the time of your order through our accepted payment methods.

4.2. Placing Products in a shopping basket without making payment and thereby completing the purchase does not constitute an order for such Products. Products may be removed from the shopping basket if the Product is no longer available. Kaya Living shall not be held liable if such Products are not available when you complete or attempt to complete the purchase at a later stage.

4.3. Once Kaya Living receives your payment, shipment of your order will be arranged in accordance with clause 5 below.

4.4. You warrant and represent that it is your sole responsibility to ensure that any payments made to Kaya Living are made safely and securely. Kaya Living will be held harmless against any damages which you may incur through phishing, theft, or any such other scam or illegal activity, which you acknowledge are common risks of transacting online.

5. Shipping, Insurance and Delivery

5.1. Shipping costs are calculated based on the delivery destination and the weight of the Product or Products. You are responsible for payment of all shipping costs, which will be displayed to you at checkout.

5.2. You are responsible for ensuring that the information provided during the order process is accurate and complete. Kaya Living shall not be held liable for any losses or damages resulting from incorrect information provided by you.

5.3. If your order is to be delivered to a local destination (i.e., within the Republic of South Africa), you may elect to pay for insurance to protect your order against any damages that may may occur to the Product during transit.

5.4. If your order is to be delivered to an international destination (i.e., outside of the Republic of South Africa), your order will automatically include insurance to cover any damages that may occur to the Product during transit. The cost of that insurance will be included in the shipping costs displayed to you at checkout.

5.5. Delivery times are estimated based on the shipping method and delivery destination. Kaya Living is not responsible for any delays caused by customs or courier services.

6. Damaged Shipments:

If your Product arrives damaged, please contact us within 48 hours of receipt of the Product. The Product may be covered under the shipping insurance, and you may be eligible for a refund or an exchange for the same Product, subject to availability.

7. Passing of Risk

All risk in respect of the Products ordered by you will pass to you on your acceptance of the Products from the courier or shipping agent.

8. Returns and Refunds

8.1. If you are not completely satisfied with your purchase, you may return the Product to Kaya Living within 30 days of your receipt of the Product.

8.2. The cost of returning the Product is your responsibility, unless the Product arrived damaged during shipment.

8.3. Refunds will, subject to clause 8.4 below, only be issued for returns made within 30 days of the delivery date. No refunds will be given after the 30-day period has passed and Kaya Living does not accept any responsibility or liability for late returns.

8.4. To be eligible for a refund, the Product must be returned to Kaya Living unused, in its original condition, and with all its original packaging. Kaya Living reserves the right to reject any return that does not meet these conditions.

9. Warranty:

Kaya Living does not provide warranties on products unless explicitly stated. Any warranties implied by law are limited to the fullest extent permitted.

10. Disclaimer and Limitation of Liability:

10.1. 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.

10.2. Whilst Kaya Living takes reasonable measures to ensure that the content of the Website is accurate and complete, Kaya Living 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.

10.3. Kaya Living 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 Kaya Living, its employees, agents, or authorised representatives. You are encouraged to contact us to report any possible malfunctions or errors by way of email to contact@kayaliving.co.za or by contacting [+27 87 077 5811].

10.4. Kaya Living 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 can 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 unconditionally accept all risks associated with the existence of such viruses, destructive materials, or any other data or code which can 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 Kaya Living, its employees, agents or authorised representatives. Kaya Living 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.

10.5. Kaya Living will not be liable for any indirect, incidental, or consequential damages arising from the use of our products or website. Our maximum liability for any Product sold is limited to the purchase price of that Product.

11. Indemnification

You hereby indemnify and hold harmless Kaya Living its directors, shareholders, members, employees, agents, contractors, volunteers, affiliates, and representatives from and against any and all claims, damages, or liabilities, whether arising directly or indirectly from negligence, gross negligence, breach of duty, omission, or otherwise, relating to injury, death, theft, property damage or any other loss sustained by yourself or any third party arising in any way from your use of this Website and/or any linked third-party website.

12. Ownership and Copyright

12.1. The contents of the Website, including any material, information, data, software, icons, text, graphics, layouts, images, sound clips, advertisements, video clips, trade names, logos, trademarks, designs, and service marks that 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 Kaya Living, its advertisers, and/or sponsors, and/or is licensed to Kaya Living.

12.2. You will not acquire any right, title, or interest in or to the Website or the Website Content.

12.3. You may not in any way display, publish, copy, print, post, or otherwise use the Website and/or the information, images, or copy contained therein without the express prior written consent of an authorised representative of Kaya Living.

12.4. 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.

12.5. Where any of the Website Content has been licensed to Kaya Living 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.

13. Availability and Termination

13.1. Kaya Living 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 any notice to you.

13.2. Kaya Living may in its sole discretion and at any time and for any reason terminate, suspend and modify this Website, with or without notice to you. You agree that Kaya Living will not be liable to you if it chooses to suspend, modify, or terminate this Website other than for processing any existing orders made by you before the suspension, modification, and/or termination thereof, to the extent possible.

13.3. If you fail to comply with your obligations under these Terms and Conditions, 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 prejudice to any other rights Kaya Living may have as a result of your breach, including the institution of claims for damages and/or specific performance.

14. Protection of Personal Information and Electronic Communications

14.1. You hereby authorise Kaya Living to collect, process, and store your personal information in compliance with the Protection of Personal Information Act (POPIA) for purposes related to the ordering, purchase and delivery of any Products from Kaya Living.

14.2. By placing an order on the Website, you consent to receive electronic communications from Kaya Living and the courier service provider.

15. Governing Law

These Terms and Conditions are governed by and interpreted in accordance with the laws of the Republic of South Africa. Your continued use of the Website constitutes 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.

16. Dispute Resolution

16.1. In the event of any dispute arising between you and Kaya Living, the parties shall first attempt to resolve the dispute by negotiation. This shall entail a written invitation from one party to the other to a meeting to be held within 7 (seven) days of the written invitation, to attempt to resolve the dispute.

16.2. If the dispute has not been resolved by such negotiation within 7 (seven) days of the written invitation, the dispute shall be referred to mediation, which mediation shall be administered in accordance with the Mediation Rules of the Arbitration Foundation of Southern Africa (“AFSA”). Either you or Kaya Living may refer the dispute to mediation.

16.3. If the parties are unable to resolve the dispute through mediation in accordance with the aforesaid Rules within 15 (fifteen) business days following the filing of a request for mediation, the dispute shall be referred to and finally determined in accordance with AFSA’s Rules of Arbitration, by an arbitrator appointed in accordance with the said Rules.

16.4. Such arbitration shall be held in Cape Town, South Africa, unless otherwise agreed to, and shall be held in a summary manner with a view to it being completed as soon as possible.

16.5. There shall be one arbitrator who shall be, if the question in issue is:

16.5.1. Primarily an accounting matter, an independent chartered accountant of at least 5 years’ standing;

16.5.2. Primarily a legal matter, a practising advocate of the Cape Bar or practising commercial attorney of at least 7 years’ standing; or

16.5.3. Any other matter, a suitably qualified person.

16.6. The appointment of the arbitrator shall be agreed upon between the parties within 10 (ten) business days after arbitration has been demanded, failing which either party shall be entitled to request the Chairman for the time being of AFSA to make the appointment who, in making his appointment, shall have regard to the nature of the dispute. The arbitrator shall have the powers conferred upon an arbitrator under the Rules.

16.7. The decision of the arbitrator shall, in the absence of manifest error, be final and binding on the parties, and may be made an order of any court of competent jurisdiction.

16.8. Notwithstanding anything to the contrary contained in this clause, any party shall be entitled to apply to any competent court having jurisdiction for a temporary interdict or other relief of an urgent and temporary nature, pending the decision or award of the Arbitrator hereunder.

17. Changes to Terms and Conditions

Kaya Living reserves the right to modify these Terms and Conditions at any time. Changes will be effective immediately upon posting on our website. You warrant and represent that you understand that it is your responsibility to review the Terms and Conditions regularly to ensure you are aware of and satisfied with any changes. 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.

18. Notices

18.1. Kaya Living hereby chooses Unit 16 Blaauwberg Industrial Park, 5 Junction Street, Milnerton, Cape Town, 7441, as its physical address and contact@kayaliving.co.za as its email address for the service of all formal notices and legal processes in connection with these Terms and Conditions (“Nominated Address”). Kaya Living may change these addresses from time to time by updating these Terms and Conditions.

18.2. You hereby select the physical and email addresses specified on the Product order form as your Nominated Address, but you may change it to any other address by giving Kaya Living not less than 7 (seven) days’ notice in writing.

18.3. Any notice given by either party to the other (the “Addressee”) which is delivered by hand between the hours of 09:00 and 17:00 on any business day to the Addressee’s physical Nominated Address for the time being shall be deemed to have been received by the Addressee at the time of delivery.

18.4. Any notice given by either party to the other which is successfully transmitted by email to the Addressee’s email Nominated Address email for the time being shall be deemed (unless the contrary is proved by the Addressee) to have been received by the Addressee on the day immediately succeeding the date of successful transmission thereof.

18.5. This clause shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the Addressee other than by a method referred to in this clause.

18.6. Any notice in terms of or in connection with these Terms and Conditions shall be valid and effective only if in writing.

19. General

19.1. You may not cede, assign, or otherwise transfer your rights and obligations in terms of these Terms and Conditions to any third party.

19.2. These Terms and Conditions contain the whole agreement between you and Kaya Living. No Party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded in these Terms and Conditions.

19.3. 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.

19.4. If any term or clause of these Terms and Conditions should be found to be invalid, or unenforceable for any reason whatsoever, then the remaining terms shall be deemed to be severable therefrom and shall continue to be of full force and effect to the maximum extent permissible by law.

19.5. Any indulgence, extension of time, relaxation, or latitude which any party (the “grantor”) may show grant or allow to the other (the “grantee”) shall not 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.