KYLE KINGSLEY FINE ART PHOTOGRAPHY PRINT STORE

Terms and Conditions

Please read these Terms & Conditions carefully. By accessing this website, you agree to be bound by these Terms & Conditions stated below. Should you disagree with any and/or part of these Terms & Conditions, you are advised not to access this website.

1. INTERPRETATION AND DEFINITIONS

1.1 Interpretation

The headings used are for ease of reference ONLY and will have no bearing on the interpretation of the Terms & Conditions of this website. Such headings shall not be deemed to govern, limit, modify and/or affect the scope, meaning or intention of the provisions of these Terms & Conditions, or any part thereof.

1.2 Definitions

Unless a contrary intention clearly appears:

1.2.1 Words importing:

1.2.1.1 the singular includes the plural and vice versa;

1.2.1.2 any one gender includes the other gender; and

1.2.1.3 natural persons include created juristic entities (corporate or non-corporate) and vice versa.

1.2.2 The following terms shall have the meanings assigned to them hereunder:

1.2.2.1 “The Photographer” herein refers to Kyle Kingsley, a sole proprietorship founded by Mr Kyle Kingsley Green, and all its photographers, representatives, assistants, affiliates and/or assignees, ‘the Photographer’ and ‘Kyle Kingsley’ are used interchangeably herein;

1.2.2.2 “The User” herein refers to any natural person, its representative, successor, agent or affiliate, including but not limited to browsers, vendors, customers/consumer as defined in the Consumer Protection Act and the Electronic Communications Act, merchants, and/or contributors of content;

1.2.2.3 “Products” herein refer to ALL photographic material furnished by the Photographer to the User; including but not limited to electronic files, RAW images, prints or any other type of physical or digital version of photographic material;

1.2.2.4 “Contracted Services” herein refers to the photographs and/or services and/or deliverables to be provided by the Photographer to, and paid for by the User, in terms of a valid invoice containing the Contract Price;

1.2.2.5 “Contract Price” herein refers to the amount payable to the Photographer by the User in consideration for the Contracted Services, as quoted for and specified in a valid and enforceable invoice;

1.2.2.6 “Intellectual Property” herein refers to patentable inventions, patent applications and patents; branding and trademarks (whether registered or not); copyright and works of authorship; registered and unregistered designs; trade secrets and know-how; software and algorithms; domain names and web presence; advertising and promotional material; and all tangible and intangible representations and manifestations of such intellectual property;

1.2.2.7 “Agreement” herein refers to the agreement between the Photographer and the User embodied by these Terms and Conditions, including any additional terms, conditions and policies referenced herein, attached hereto and/or made available by way of hyperlink;

1.2.2.8 “Confidential Information” herein refers to information that (i) relates to the Disclosing Party’s past, present or future business activities, products, services, and technical knowledge, proprietary information and interest, and (ii) either has been identified in writing as confidential, or is of such a nature, or has been disclosed in such a way that it is obvious to the Receiving Party that it is claimed as confidential. As used herein the Party disclosing Confidential Information is referred to as ‘the Disclosing Party’ and the Party receiving the Confidential Information is referred to as ‘the Receiving Party’. Without limiting the aforgoing, “Confidential Information” shall also include any information that falls within the definition of ‘Personal Information’ as defined in the Protection of Personal Information Act, No. 4 of 2003;

1.2.2.9 “Party” herein refers either to the Photographer or the User;

1.2.2.10 “Comments” herein refers to User’s submission, including but not limited to, competition entries, User requests, ideas, suggestions, proposals, plans, or any other material submitted to the Photographer, whether it be online, via electronic communication, and/or via postal services;

1.2.2.11 “Electronic Communications Act” herein refers to the Electronic Communications and Transactions Act, No. 25 of 2002;

1.2.2.12 “Consumer Protection Act” herein refers to the Consumer Protection Act, No. 68 of 2008

2. GENERAL

2.1 Kyle Kingsley offers this website, including all information, tools and services available to the User, on the basis of the User’s acceptance of all the terms, conditions, policies and notices contained herein. By using our service, you are deemed to have read, understood and accepted the terms & conditions, forming a legal binding agreement between the Photographer and the User.

2.2 All orders are accepted according to these Terms & Conditions. By using the Kyle Kingsley website, you accept all these Terms & Conditions.

2.3 The User engages in Contracted Services by accessing the Kyle Kingsley website and/or purchasing any Product from the Kyle Kingsley website; and subsequently agrees to be bound by the terms and conditions contained and referenced herein; including but not limited to: -

2.3.1 The User acknowledges that he is of the age of majority in the jurisdiction in which he resides, with the necessary capacity to contract and enter into valid transactions;

2.3.2 The Photographer reserves the right to refuse to provide Contracted Services to any User, for any reason as the Photographer may deem fit;

2.3.3 Any breach or violation of the terms and conditions on the part of the User, will result in immediate cancellation of the Contracted Services, with a claim for damages.

2.4 The terms and conditions at set out herein apply to ALL Users (as defined in par 1.2.2.2) of the Kyle Kingsley website, the onus rests on the User to read through the terms and conditions carefully before engaging in Contracted Services, as any engagement with the Kyle Kingsley website will constitute acceptance of the terms and conditions; and the User will be liable for any breach thereof.

2.5 The Photographer reserves the right to update, change and/or make amendments to the Kyle Kingsley website without prior notice. The onus rests on the User to periodically familiarise himself with any changes made hereto; however, any access and/or continued use of the Kyle Kingsley website following updates constitutes acceptance of the amendments; and: -

2.5.1 The Photographer is not held responsible if information provided for on the website is inaccurate, incomplete or outdated; and

2.5.2 Reliance placed on any information provided for on the website, which may be historical information, general in nature and/or is for reference purposes only, is at the User’s own risk.

2.6 The website is hosted by Squarespace and Shopify Incorporated. All payments are secured and powered by PayFast.

3. PHOTOGRAPH SUBJECT MATTER DISCLAIMER

3.1 Privacy laws in the Republic of South Africa permit the Photographer to take pictures in any public space. The Photographer reserves the right to take photos of anyone and/or anything if it is visible from a public area and falls within the public domain, including but not limited to parks, city streets, sporting events or concerts.

3.2 Any person and/or member of the public waives his/her right to anonymity or privacy by appearing in public areas considered to be the public domain; and as such are fair subject matter for photographs.

3.3 The Photographer reserves his right to use images of people for personal or “fair use” purposes, which includes but is not limited to news, works of art, satire, politics, informational or educational purposes.

4. ACKNOWLEDGMENTS BY THE USER

4.1 Provision of Confidential Information: -

4.1.1 The User accepts and undertakes providing accurate, complete and timeous Confidential Information that may be required during the course and scope of the Contracted Services; and the User agrees to provide current, complete and accurate Billing and Shipping account information for all purchases of Products by means of the Kyle Kingsley website.

4.1.2 The User understands that the provision of Confidential Information may be transferred in an unencrypted format, with the exclusion of credit card information, and involve transmission over (a) various networks; and (b) changes in order to confirm and be adaptable to any and/or all technical requirements of connecting networks or devices.

4.1.3 Should there be any changes to information, the User agrees to promptly update any account, billing and/or other confidential information, which includes but is not limited to: -

4.1.3.1 Contact numbers;

4.1.3.2 Email addresses;

4.1.3.3 Credit card numbers and their respective expiration dates.

4.2 Usage of the Kyle Kingsley website

4.2.1 The User may only use the website to browse the content, make legitimate purchases and shall not use the website for any other purposes, including without limitation, to make any speculative, false, or fraudulent purchase;

4.2.2 The User agrees to not reproduce, duplicate, copy, sell, resell, republish, distribute or exploit any portion of the website; use of the website, or access without prior written consent from the Photographer, which may not be unreasonably withheld;

4.2.3 The transmission of any code and/or viruses of a destructive and harmful nature is strictly prohibited. The User agrees that he will not decompile the software, undertake, cause, permit or authorise the modification, creation of derivative works, translation, reverse engineering, disassembling or hacking of the website and/or its respective software. Such action will be deemed criminal and such actions will be prosecuted in accordance with the applicable law;

4.2.4 Certain content, Products and/or services made available include third-party links, which may direct the User to third-party websites (please refer to paragraph 8 for more information);

4.2.5 All software material, information and content furnished by the Photographer is protected by copyright and other applicable and relevant laws. All rights are reserved worldwide. It is strictly prohibited to re-distribute, copy and/or republish any such material without written permission of the copyright owner, which may not be unreasonably withheld. Unauthorised use of this site and/or materials contained on the site may violate applicable copyright, trademark or other intellectual property laws or other laws.

4.3 Contract Prices are subject to change at the sole discretion of the Photographer, without prior notice to the User;

4.4 The Photographer reserves the right to, at any time, modify, suspend or discontinue the Kyle Kingsley website (or any part thereof), without prior notice; and will not be liable to any User and/or third-party for any modification, suspension, discontinuance or price change.

4.5 User comments, feedback and other submissions

4.5.1 The Photographer reserves the right to, at any time, without restriction; edit, copy, publish, distribute, translate and otherwise use in any manner and/or form, any comments that have been forwarded to the Kyle Kingsley website;

4.5.2 The Photographer is:

4.5.2.1 Under no obligation to maintain any comments, compensate the User for any comments, and/or respond to any comments; and

4.5.2.2 The Photographer undertakes to monitor; however, is not obligated to monitor, edit or remove comments, that may be unlawful, offensive, threatening, defamatory, pornographic, obscene and/or otherwise objectionable or in violation of a User’s and/or third party’s intellectual property or these Terms and Conditions.

4.5.3 The User undertakes to:

4.5.3.1 Not post any comment that violates the rights of the Photographer and/or of a third-party, including but not limited to, copyright, trademark, privacy, personality and any other personal and/or proprietary right;

4.5.3.2 Ensure any comments are free from any defamatory, unlawful, abusive and/or obscene material;

4.5.3.3 Mislead and/or misrepresent his identity to the Photographer and/or any third-party website; and

4.5.3.4 Be solely responsible for the content and accuracy of his comments and absolves the Photographer from all liability for all comments posted by the User and/or third-party.

4.6 Monitoring

4.6.1 The Photographer reserves the right, but is not obligated, to monitor any activity and content associated with the Kyle Kingsley website.

4.6.2 The Photographer may investigate any reported violation of these Terms & Conditions and/or complaints and take any action that we may deem appropriate, which may include, but is not limited to, issuing warnings, suspending Users, termination or attaching conditions to any User’s access and/or removing any materials from the Kyle Kingsley website.

5. PRODUCTS AVAILABLE AND LIMITED EDITION

5.1 Products are made available exclusively for purchase, by means of the Kyle Kingsley website and ultimately the fine art print store hosted by Shopify Inc., which are subject to Return and/or Exchange in accordance with the Kyle Kingsley Return Policy.

5.2 The Photographer reserves the right to limit the number of Products available for sale, on an ad hoc basis based on, but not limited to: -

5.2.1 The User’s geographical location or jurisdiction;

5.2.2 The quantity purchased per User, per household, per online order made under the same:

5.2.2.1 User account;

5.2.2.2 Credit card;

5.2.2.3 Shipping and/or Billing address;

5.2.3 The User appearing to be a dealer, reseller or distributor; and/or

5.2.4 For whatever reason the Photographer deems fit, necessary, and appropriate.

5.3 The quality of the Products are of such a standard that many of the Products, presented in various collections, e.g. Human, Land, Wild, are limited editions. The

Photographer reserves the right to limit the amount of Products to be sold entrenching their value, based on but not limited to: -

5.3.1 Time, travel and location costs;

5.3.2 Safety and security of the Photographer;

5.3.3 Rarity of the subject matter, etc.

5.4 The Photographer reserves the right to:

5.4.1 Limit and/or prohibit the quantity of any Products available based on the reasons set out in paragraph 5.2 and/or paragraph 5.3;

5.4.2 Amend Product descriptions;

5.4.3 Amend Product pricing; and/or

5.4.4 Discontinue and/or suspend the availability of a Product series, on an ad hoc basis at any time without prior notice to the User.

5.5 Lead time is dependent on stock availability and the amount of orders in production at the time of placing an order. Best effort will be made to affect timeous delivery; however, any supervening impossibility and/or unforeseen circumstance may cause delays. The Photographer will undertake to contact you and provide you with an updated delivery date.

6. ACKNOWLEDGEMENTS BY THE PHOTOGRAPHER

6.1 The Photographer undertakes to ensure that the colours and composition of the Products available for purchase by the User are displayed accurately and are a correct representation of the Product on the Kyle Kingsley website; however, the Photographer cannot guarantee the accuracy of the Product’s rendering on the User’s electronic medium. The Photographer shall not be required to produce any matter, which in their opinion is illegal or defamatory or obscene and retains the right to execute orders placed.

6.2 The Photographer warrants the reproduction of images and creation of Products of the highest resolution, printed and displayed on Hahnemuhle Photo Rag FineArt Inkjet paper; as a result the Photographer undertakes to inspect each Product before shipping to ensure there are no errors and/or patent defects; therefore, the Product is ‘fit for purpose’. However, the Photographer is not liable for, including but not limited to: -

6.2.1 Damage to the Product, of any kind, as a result of gross negligence, recklessness, malicious behaviour and/or criminal behaviour on the part of the User and/or third party; for example:

6.2.1.1 Inappropriate handling of the Product resulting in creasing, smudging, markings, tearing, folding, cracking, breaking of glass etc ;

6.2.1.2 Inadequate framing resulting in creasing, smudging, markings, tearing, folding, cracking, breaking of glass etc;

6.2.2 ‘Change of mind’ errors due to the Product not meeting the User’s expectations, which exempts the Photographer from liability based on

paragraph 6.1 above.

6.3 It is possible that the Kyle Kingsley website may contain typographical errors, inaccuracies and/or omissions that relate to product descriptions, pricing, promotions, offers, product shipping, transit times and availability, the Photographer reserves the right, but is not obligated to: -

6.3.1 Correct any errors, inaccuracies and/or omissions;

6.3.2 Amend and/or update information available on the Kyle Kingsley website;

6.3.3 Cancel orders if any of the terms and conditions, or any related website, is inaccurate at any time, without prior notice to the User and/or third party; however,

6.3.4 Undertakes to update, amend and clarify all available information timeously, as the safety, security and enjoyment of Users is of the utmost importance to the Photographer.

6.4 In accordance with section 46 of the Electronic Communications Act:

6.4.1 the Photographer undertakes to execute all orders of Products within 30 (thirty) days after the day on which the Photographer received the order, unless the Parties have agreed otherwise;

6.4.2 where the Photographer has failed to execute the order within 30 (thirty) days or within the agreed period, the User may cancel the agreement with 7 (seven) days’ written notice;

6.4.3 If the Photographer is unable to perform in terms of the agreement on the grounds that the goods or services ordered are unavailable, the Photographer must immediately notify the User of this fact and refund any payments within 30 (thirty) days after the date of such notification.

6.5 In the event of delayed delivery of the Product ordered by the User, and/or the delivery appears to be impossible, the Photographer shall attempt to make available a replacement Product. The possibility of a replacement Product will be conveyed to the User in a clear and understandable manner before delivery.

6.6. Unless otherwise expressly agreed, the risk of damage and/or loss of Products rests with the Photographer up to the moment of DELIVERY with the User and/or his designated representative, at the User’s Shipping Address. Should the User have received a defective Product, the Photographer should be immediately notified at prints@kylekingsley.com

7. OPTIONAL TOOLS

7.1 The Photographer may provide the User with access to optional third-party tools; however, the User is advised that the Photographer does not monitor, nor have control or input on these tools.

7.2 Third-party tools are provided for ‘as is’ and are made available without any warranties, representations and/or conditions of any kind and endorsement by the Photographer. Therefore, the Photographer accepts no liability, whatsoever, arising from or relating to and arising from the User’s access and use of the optional third-party tools.

7.3 The Photographer reserves the right to, at any time, offer new third-party optional tools, services and/or features. Such new third-party optional tools, services and/or features shall also be subject to these Terms and Conditions.

8. THIRD-PARTY LINKS

8.1 Third party links used on the Kyle Kingsley website may direct the User to third-party websites that are not affiliated to the Photographer in an attempt to provide increased value to all our Users. The Photographer is not responsible for examining and/or evaluating the content and/or accuracy of any third-party website; as such the Photographer does not accept any liability and/or responsibility for any third-party materials, products, services and/or websites.

8.2 The Photographer does not accept any liability and/or responsibility for any harm and/or damages as a result of access to and use of third-party materials, products, services and/or websites. The User acknowledges and agrees that we are not responsible for the availability of such external sites and/or resources, and do not endorse and are not responsible and/or liable, directly or indirectly, for the privacy practices or the content (including misrepresentative or defamatory content) of such websites, including (without limitation) any advertising products or other materials or services on or available from such website or resources; nor for any damage, loss or offence caused or alleged to be caused by, or in connection with, the use of or reliance on any such content, goods or services available on such external sites or resources.

8.3 Users are encouraged to review third-party’s policies and practices before any engagement with any third-party websites; and all complaints, claims, questions and/or concerns should be directed to the third-party and not the Photographer.

9. PROHIBITED USES

9.1 Notwithstanding the prohibitions as set forth in these terms and conditions, the User is prohibited from using the Kyle Kingsley website and/or its content: -

9.1.1 For any unlicensed copyrighted materials from the Photographer, artists, publishers, composers, writers, or any other authors of original works. The copyright owner’s exclusive rights prohibit the reproduction of any original work without their consent, which may not be unreasonably withheld. The User will be held solely responsible for all possible consequences of unlawful use of protected data.

9.1.2 For any obscene, indecent, pornographic, lewd and/or unlawful purpose;

9.1.3 To solicit and/or incite third parties to perform and/or participate in any unlawful acts;

9.1.4 To violate any international, national, federal, provincial and/or local and/or municipal laws, whichever may be applicable;

9.1.5 To violate and/or infringe upon the intellectual property rights of the Photographer and/or any third party;

9.1.6 To harass, abuse, insult, harm, defame, slander, intimidate and/or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, nationality or disability;

9.1.7 To submit false or misleading information;

9.1.8 To upload or transmit viruses, malware and/or any other type of malicious code that will negatively impact the functionality and operation of the Kyle Kingsley website or that of a third party, or the Internet;

9.1.9 To collect, track, spam or phish the Confidential Information of others;

9.1.10 To intervene and/or circumvent the security features of the Kyle Kingsely website, any third party website, or the Internet.

9.2 The Photographer reserves the right to terminate the User’s access, use and enjoyment of the Kyle Kingsley website or any related third-party website if found in contravention of these terms & conditions, and/or violating any of the prohibited uses mentioned in paragraphs 9.1.1 to 9.1.10 above.

9.2.1 The User acknowledges and agrees that he will be liable for any action taken against the Photographer in relation to any such activities and will fully indemnify Kyle Kingsley against any such claims, actions, demands or costs that may arise as a result;

9.2.2 The User acknowledges and agrees that the Photographer may preserve content and may also disclose content if required doing so by law and/or in the good faith belief that such preservation or disclosure is reasonably necessary to:

9.2.2.1 Comply with legal processes;

9.2.2.2 Enforce the terms of service;

9.2.2.3 Respond to claims that the content violates the right of third-parties; or

9.2.2.4 Protect the rights, property, or personal safety of Kyle Kingsley, its users and the public.

10.GOVERNING LAW

These Terms & Conditions shall be governed by, construed and interpreted in accordance with the Laws of the Republic of South Africa, whose courts shall exercise exclusive jurisdiction in any dispute that may arise. The Photographer reserves the right, at his sole discretion, to commence, institute and pursue legal proceedings in alternative jurisdictions.

11. COOLING OFF PERIOD

11.1 In accordance with section 44 of the Electronic Communications Act, should the User, purchase a Product due to direct marketing (please refer to the Returns Policy for more information on the rules regarding this specific return), the User is entitled to cancel the transaction, “without reason and without penalty”, for the supply :-

11.1.1 of goods within 7 (seven) days after the date of the receipt of the goods; or

11.1.2 of services within 7 (seven) days after the date of the conclusion of the agreement

11.2 The only amount due and payable by the User that will be levied by the Photographer is the direct cost of returning the Product, in its original packaging accompanied by all its original accessories;

11.3 During the ‘cooling off’ period, the User undertakes to treat the Product and package with the utmost care as reasonably possible and expected of such a quality Product. He shall unpack or use the Product only to the extent as it is necessary to inspect the Product.

11.4 In the event that the User exercises the right to validly cancel, for reasons contained in the Return Policy, and payment has been effected; the User is entitled to a full refund of such payment, which refund will be made by the Photographer within 30 (thirty) days of the date of cancellation.

11.5 This cancellation policy does NOT apply to, as defined in section 42 of the Electronic Communications Act: -

11.5.1 For financial services, including but not limited to, investment services, insurance and reinsurance operations, banking services and operations relating to dealings in securities;

11.5.2 by way of of an auction;

11.5.3 for the supply of foodstuffs, beverages or other goods intended for everyday consumption supplied to the home, residence or workplace of the User;

11.5.4 for services which began with the User’s consent before the end of the 7 (seven) day period referred to in clause 11.1;

11.5.5 where the price for the supply of goods or services is dependent on fluctuations in the financial markets and which cannot be controlled by the supplier;

11.5.6 where the goods -

11.5.6.1 are made to the user’s specifications;

11.5.6.2 are clearly personalised;

11.5.6.3 by reason for their nature cannot be returned; or

11.5.6.4 are likely to deteriorate or expire rapidly;

11.5.7 where audio or video recordings or computer software were unsealed by the User;

11.5.8 for the sale of newspapers, periodicals, magazines and books;

11.5.9 for the provision of gaming and lottery services; or

11.5.10 for the provision of accommodation, transport, catering or leisure services and where the Photographerundertakes, when the transaction is concluded, to provide these services on a specific date or within a specific period.

12.LIMITATION OF LIABILITY

12.1 Notwithstanding the Photographer’s best efforts to ensure seamless service, the Photographer does not guarantee, represent and/or warrant that your use of the Kyle Kingsley website will be uninterrupted, timely, secure or free from errors.

12.2 The User expressly agrees that his use, or in some instances, inability to use, the Kyle Kingsley website is at his own risk.

12.3 The Photographer is not liable for damages, of any kind, arising from the User’s use and enjoyment of the Kyle Kingsley website or any Product, including but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or Product) posted, transmitted, or otherwise made available by the Kyle Kingsley website, even if advised of their possibility.

12.4 After processing an order, the order form and proof thereof is stored on Shopify and Google Sheets for a period of 5 years. This is done in order to check any quality related queries. It is the User’s responsibility to check the order form before the order goes to print. The Photographer can in no way be held responsible for damage and/or loss of uploaded files or to non-delivery of any Product due to incorrect information provided or failure by the couriers to locate and deliver the Product to you. The Photographer is not responsible for third party shipping errors, omissions or damaged shipments.

12.5 You, the User, shall indemnify the Photographer against any claims, costs and expenses arising out of infringement of copyright, trademark, patent or design. The Photographer gives no warranty, express or implied, concerning the suitability of the Products supplied for any purposes other than its reasonable designated purpose, nor shall the Photographer be liable for any direct, indirect, consequential or other loss including loss to third parties arising out of errors in carrying out an order placed or by delay in delivery, or by the suitability of goods for use as intended.

13. INDEMNIFICATION

The User agrees to indemnify the Photographer for any claim and/or lawful demand, including reasonable attorneys’ fees, made by any third party due to or arising from the User’s breach of these Terms and Conditions, or the documents they incorporate by reference, or your violation of the rights of a third party.

14. DISCLAIMER OF WARRANTY

14.1 The contents of the Kyle Kingsley website are provided “as is”, without warranty of any kind, either expressed or implied, including but not limited to warranties of merchantability, fitness for purpose and non-infringement.

14.2 The owner of this website, authors, content creators and any person connected to this website in any way (hereinafter referred to as “the Providers”), assume no responsibility for errors or omissions in these Terms & Conditions.

14.3 The Providers further do not warrant, guarantee or make any representation regarding the safety, reliability, accuracy, correctness or completeness of the contents of these Terms & Conditions. The Providers shall not be liable for any direct, indirect, general, special, incidental or consequential damages; including without limitation to, data loss, loss of revenue and loss of profit, which may result from the inability to use or the correct or incorrect use, abuse, or misuse of these content, even if the Providers have been informed of the possibilities of such damages.

14.4 The use of the contents herein contained is forbidden in places where the law does not permit this clause to be of full force and effect.

15. SEVERABILITY

In the event that any of these Terms and Conditions is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by the applicable law, and the unenforceable portion shall be deemed to be severed from these Terms and Conditions, such determination shall not be of force and effect on the validity and enforceability of the remaining provisions.

16. TERMINATION

Any agreement between the Parties shall remain effective unless and/or until validly terminated by either of the Parties, or when the User ceases to use the Kyle Kingsley website.

17. PRIVACY POLICY

17.1 This privacy policy is applicable to all the web pages related to the Kyle Kingsley website. Your use and enjoyment of this website is indicative of your assent to our privacy policy. Should you disagree with the policy, terms & conditions, you are advised to cease use hereof and the corresponding software applications.

17.2 All information gathered on the website is used to personally identify Users that subscribed to this service. The information will not be used for anything other than which is stated in the Terms & Conditions of use for this website. None of the information will be sold or made available to any third party.

17.3 Information that may be collected by the Kyle Kingsley website is used to improve and administer the website. Some of information may include:

17.3.1 The User’s internet provider;

17.3.2 The User’s Internet Protocol (IP address);

17.3.3 Date and time of access;

17.3.4 Third-party links accessed from our website; and

17.3.5 The internet address of the website from which the User linked directly to the Kyle Kingsley website.

17.4 The Photographer reserves the right to make amendments to this policy on an ad hoc basis in order to address any new issues and bring our site in line with the relevant law and public policy. The User is advised to remain abreast of any changes by continuously reviewing the Kyle Kingsley Terms & Conditions. Your use of the website is interpreted as your acceptance of the new and/or amended policy changes.

17.5 Cookie/Tracking Technology

17.5.1 The Kyle Kingsley website may use cookie and/or tracking technology depending on the features offered, as these tools are used for gathering information regarding the User’s browser type and operating system, tracking the number of visitors to the website and how they may use it, as well as making any customisation or improvements thereto.

17.5.2 Please note that if the User previously provided personally identifiable information, cookies and/or tracking technology may be associated with such information. As a result, aggregate cookie and tracking information may be shared with third parties.

18. DELIVERY POLICY

18.1 The User undertakes to provide the correct delivery address when ordering from the Photographer, as the risk passes to the User once the Product has been shipped and all Products will be delivered to the delivery address supplied by the User at the time of placing an order. In the event that a Product has been ‘undeliverable’ and returned, the Photographer will attempt to contact the User and negotiate arrangements for re-shipment.

18.2 Production and delivery of Products will be executed within 30 (thirty) days after placement of the order and payment of the order has been received; however, delivery may be affected within 7 (seven) to 10 (ten) business days after payment has been received. However, please note: -

18.2.1 The shorter time for delivery is only an estimate and not a condition for this agreement;

18.2.2 Delays in the delivery time will not constitute valid grounds to cancel an order or claim damages;

18.2.3 Any order is only subject to cancellation or variation by reason of force majeure, which is understood to be an act of God or man that is of such a nature that it is unforeseen and unforeseeable; and out of the reasonable control of one or both of the parties to this agreement, and which makes it objectively impossible for one or both of the parties to perform their obligations under this agreement.

18.3 All products will be covered by insurance for shipping purposes. In the event that the Product is damaged upon receipt, the User is required to notify the Photographer within 24 (twenty four) hours of delivery with photos of the damaged packaging in order to qualify for a replacement.

18.4 Shipping terms and costs are dependant and based on: -

18.4.1 General Non Hazardous Commercial goods;

18.4.2 Solely based on the details provided, which is subject to the shipment details at the time of the shipment;

18.4.3 Excluding any ‘out of the ordinary’ charges (i.e. loading, offloading, rigging, storage, etc.);

18.4.4 The most economic routing, which is subject to space and availability;

18.4.5 Customs Duties & VAT, which is subject to Customs Rulings and will be billed at cost at the time of shipment for international shipping;

18.4.6 Rate of Exchange at the time of the international shipment;

18.5 Delivery rates provided are valid for a calendar month and can be revised at the time of the shipment.

19. RETURNS POLICY

PLEASE CHOOSE YOUR PRINT CAREFULLY! The Photographer does NOT give refunds if you have simply changed your mind AND/OR have made the incorrect decision AND/OR are expressing some kind of ‘buyer’s remorse’. Please keep your receipt as proof of purchase.

19.1 The right to return is governed by the Consumer Protection Act and the Electronic Communications Act. The User is advised to please choose carefully before purchasing from the Kyle Kingsley website, and should not carelessly enter into transactions under the misapprehension and false expectation that you may be entitled for a refund.

19.2 The User may ONLY return a Product in the following instances:

19.2.1 Where the product is unsafe for the purpose for which the Product was generally intended and/or is bad quality, not in good working order and defective, and/or unusable and durable for a reasonable period of time.

Within 6 (six) months after the delivery of the Product to the User, you may return the Product to the Photographer, without penalty and at the Photographer’s risk and expense, if the Product fails to satisfy the requirements and standards set out in S55 of the Consumer Protection Act, and the Photographer must, at the direction of the User, either -

(a) repair OR replace the failed, unsafe or defective Product; OR

(b) refund to the User, using the original payment method, the price paid by the User, for the Product.

19.2.2 Where the Photographer has delivered the Product to the User in terms of an agreement arising out of direct marketing, and the User has rescinded that agreement during the ‘cooling-off period, in accordance with S44 of the Electronic Communications Act: -

‘Direct marketing’ means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of -

(a) promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or

(b) requesting the person to make a donation of any kind for any reason.

The process is that the:

(a) User must within 7 (seven) days of delivery advise the Photographer, in writing or other recordable form, that he is rescinding the agreement;

(b) The User must return the Product delivered within 10 (ten) business days of delivery of such goods; and

The Product will be returned at the risk AND expense of the User.

19.2.3 Where the User did not have an opportunity to examine the Product before delivery and where the User has now rejected delivery.

Valid reasons for rejection of delivery are ONLY when: -

(a) The type and quality of the product are not as reasonably contemplated in the agreement; or

(b) The Product differs in a material respect or characteristic from the product description, based on what the ordinary reasonable and alert ‘consumer’ would be entitled to expect; or

The Product will be returned at the risk and expense of the Photographer.

19.2.4 A Product has been ordered; however, it is delivered mixed with other goods that were not ordered by the User, and the User accepts delivery of the ordered goods.

In this instance, the User can: -

(a) Reject the goods not ordered; or

(b) Reject ALL the delivered goods.

The goods must then be returned within 10 (ten) business days of delivery. This is done at the risk AND expense of the Photographer.

19.2.5 A Product was intended to satisfy a particular purpose, communicated to the Photographer as contemplated in S55(3) of the Consumer Protection Act, and within 10 (ten) business days after delivery to the User, the Product has been found to be unsuitable for that particular purpose. The Product must be returned at the risk AND expense of the Photographer.

19.3 The User forfeits his right of return, other than for defective or unsafe products as contemplated in paragraph 19.2.1 above, if the Product concerned:

19.3.1 Has been disassembled, altered, permanently installed, affixed or combined with other goods; or

19.3.2 A public regulation for reasons of public health or other prohibits the return of such goods.

19.4 IN SHORT - The Photographer is NOT liable for User generated mistakes. It falls within the Photographer’s discretion to allow a repair, exchange or refund where the Product is faulty, wrongly described, different from the sample shown to you or does not perform as intended.

20. PAYMENT OPTIONS AND PRICING

20.1 All transactions will be processed in South African Rands (ZAR). Remember, the Photographer reserves the right to change pricing at any time, without prior notice.

20.2 All purchases are powered and secured by PayFast. Therefore, the Photographer accepts the following payment methods:

20.2.1 Credit & Cheque cards: Visa, Mastercard credit cards are the most popular and trusted online payment methods around the world;

20.2.2 Instant EFT by PayFast: Users with access to internet banking to make Electronic Funds Transfer (EFT) can use this method, which gets instantly verified by the User’s bank;

20.2.3 Mobicred: Users with an online account provides them access to credit, which they can use to pay the Photographer through PayFast;

20.2.4 Masterpass: A Mastercard digital wallet enabling Users to securely and efficiently check out via online payments;

20.2.5 Zapper: A free ‘scan to pay’ app that make purchases convenient and secure for our Users

20.2.6 Debit Card: Debit cards issued by Maestro and Visa Electron are accepted;

20.2.7 SCode: A unique payment platform that allows Users to pay for their online purchases in-store, at one of more than 6,000 accepted retail outlets across South Africa.

20.3 Coming soon → SnapScan

21. SECURITY POLICY

21.1 The Photographer undertakes to ensure the data security of its Users through robust security protocols offered, powered and secured by PayFast.

21.2 Notable security protocols:

21.2.1 All credit cards payments are PCI-DSS Level 1 Compliant;

21.2.2 Extended Validation Secure Socket Layers (SSL) with 2048-bit encryption;

21.2.3 Secure server hosting to prevent phishing;

21.2.4 Weekly Approved Scanning Vendor (ASV) scans;

21.2.5 Credit cards payments are 3D Secure;

21.2.6 GEO IP Tracking to ensure transactions match a bank card’s country of origin;

21.2.7 Payment and credit card details are validated and checked;

21.2.8 Bank Identification Number (BIN) and Issuer Identification Number (IIN) validation;

21.2.9 The usage of Web Application Firewalls to detect and stop any malicious

activity.

22. ENTIRE AGREEMENT

These Terms and Conditions and/or any policies or annexures attached hereto or posted to the Kyle Kingsley website constitutes the entire agreement and understanding between the Photographer and the User.

23. CONSENT

I, the User, hereby understand that all the designs, Products and trademarks (whether registered or not) are the property of the Photographer; and hereby accept the Terms & Conditions. I undertake not to copy/duplicate the trademarks and the Photographer’s Products and designs directly or indirectly in any way; and further understands the legal implications thereof. Should I be found to be in violation of this agreement, I understand that I will be held liable for all legal costs incurred by the Photographer for any civil litigation and/or any legal action deemed reasonable and necessary in the course of justice against me.

24. PHOTOGRAPHER CONTACT DETAILS

24.1 Physical address: 15 Ave Protea

Fresnaye

Cape Town

8005

South Africa

24.2 Email address: prints@kylekingsley.com

info@kylekingsley.com

24.3 Contact number: +27 76 633 1441