1.INTRODUCTION

1.1 These Terms of Sale set out the terms and conditions on which products are supplied to you as a buyer on www.ongoharvest.com and its mobile application (together defined as the “Site”). The owner and operator of the Site is Affluak Inc (Pvt) Ltd, a limited liability company registered in Zimbabwe(“UAE”).

1.2 Please read these terms carefully before you submit your order via the Site. By placing an order on the Site, you are agreeing to be bound by these Terms of Sale with immediate effect.

2.ORDER ACCEPTANCE

(2.1)Supplier. Each product in your order is sold either by us or by the local or international seller that is specified on the Site.

(2.2)Order Acceptance. Our acceptance of your order will take place when we notify you of our acceptance in writing (e.g. by email or mobile messaging). If we are unable to accept your order, we will inform you of this in writing or through a call and will not charge you for the product.

(2.3)Payment. By placing an order, you authorise us or our third-party payment processor to process your credit/debit card details for the amount of your order. We accept payment by, a) Cash On Delivery; b) credit/debit card.

(2.4)In order to authorise credit/debit card payments, we may be required to create an account for you with our third-party payment processors, including accepting their standard terms and conditions and submitting your details to them on your behalf. You hereby authorise us to do so and we shall not be liable to you for any damage or loss you may incur as a result.

(2.5)We may remove or add cards or other payment methods that we accept at any time without prior notice to you.

(2.6)Replacing an Order: You acknowledge that:

(a)The items ordered are subject to stock availability at the respective stores and to successfully complete your order, we reserve the right to amend your order in whole or in part, at any time and without any liability or compensation and to remove any item that is out of stock, damaged, spoiled, or unavailable for any other reason.

(b)We endeavour to ensure that all the items listed on the Site as “available” are in fact available and in stock. If, however, any product you order is out of stock or unavailable for any other reason including being damaged or spoiled, we may, without incurring any liability, send you a push notification enabling you to select a replacement item (“Replacement(s)”), which you may choose to accept or reject.

(c)Even though we use our best efforts to ensure that the price of the Replacement(s) is the same as the item you originally ordered, in the event the price of such Replacement(s) is higher or lower than the item originally ordered, you understand that acceptance of such item allows us to make the applicable upward or downward price adjustment.

(d)Upon the acceptance and/or rejection of the Replacement(s), the order shall be deemed to have been completed and the final amount will be charged on your credit/debit card at the time of shipping the order (Final Payment).

(e)Such Final Payment will be the amount that may have been revised to reflect the price adjustment carried out due to Replacement(s).

(f)If any item(s) is not delivered, despite being charged, the amount attributable to such item(s) will be credited to your credit/debit card registered on the Site within a reasonable time. In this situation, we are only obliged to refund the amount of the item charged and not delivered and in no circumstances, we shall be responsible for delivering such item or held liable for any compensation.

(g)Although we will always try to cater to your orders, an order of unusually large quantities of different or one product can only be fulfilled at the discretion of the seller store.

(2.7)Cancelling Order. You may cancel your order immediately prior to shipping for any reason. If you cancel your order prior to shipping, we will not charge any amount on your registered credit/debit card.

(2.8)Our Cancellation. We may cancel your order(s) if: a) you do not make any payment to us when it is due; b) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the products; c) you do not, within a reasonable time, allow us to deliver the products to you or collect them from us; or d) you attempt to bulk or multi-order purchase in accordance with clause 2.9, below.

(2.9)Bulk/Multiple Purchasing. We reserve the right to reject any orders, at our sole discretion, where we detect bulk purchasing or multiple units of similar products being purchased.

3.DELIVERY OF YOUR ORDER

(3.1)Payment Methods: You can choose from the following payment options, depending on the products, the means of dispatch and as per technical availability:

(a)online payments using credit or debit card (Visa & MasterCard); (b) Cash On Delivery payments.

If you make a payment for products or services on the Site, the details you are asked to submit will be provided directly to our payment provider via a secured connection.

(3.2)Placing Orders:

(a)To place orders, you are required to save a payment method on your account (saved securely by the payment provider).

(b)At the time of saving the payment method, we will pre-authorize your card selected for the payment for an certain  amount (which will be reversed immediately by us and refunded into the card in accordance with your bank’s policy). Such pre-authorisation will occur only once for the card selected for the purposes of payment. Please note that for any subsequent order, if you decide to change the card for the purposes of payment, we will follow this process of pre-authorisation and refund again.

(c)Any such card(s) selected for the purposes of payment shall be saved in your profile and the card used by you for the most recent order will be used for all future orders by default; unless modified by you.

(d)You must save and retain a copy of transaction records and seller’s policies and rules.

(e)If for any reason the payment transaction is declined, we are entitled, at our sole discretion, to suggest adding a new payment method.

(f)We reserve the right to cancel the order if the Final Payment is not received by us within the indicated timeframe.

(3.3)Delivery Costs. The costs of delivery (whenever applicable) will be as displayed to you on our Site.

(3.4)Delivery Date and Time. This information will be displayed to you on our Site.

(3.5)Delivery Delays:

(a) if our supply of the product is delayed by an event outside of our control, then we will contact you as soon as possible to let you know and without incurring any liability, we will take steps to minimise the effect of the delay;

(b) if no one is available at your address to take delivery and the products cannot be posted through your letterbox, we will notify you of how to rearrange delivery or collect the product;

(c) if you do not collect the product from us as arranged or if, after a failed delivery to you, you do not re-arrange delivery or collect them from a delivery depot, we will contact you for further instructions. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection, we will cancel your order.

(3.6)ID Requirement Upon Delivery. We may, at our sole discretion, make any inquiry we deem necessary to verify your identity and/or ownership of your financial instruments by requesting that you provide us with further information or documentation, including, but not limited to requesting a form of identification and/or credit card. If we are unable to verify or authenticate any information you provide, we have the right to refuse delivery and cancel the order.

(3.7)Title to Products. A product will be considered owned by you and your responsibility from the time we deliver the product to the delivery address and you have paid for the product.

(3.8)Invoice. We will issue an electronic invoice for your purchase and send such invoice to the email address you provided to us.

4.RETURNS

(4.1)You do not have a right to return, replace or exchange products, unless such products fall into any of the following categories (Returnable Product(s)):

Return (Reason)            Return (Possibility)      Return Condition

You have received a wrong product;

You have received a product that is not as described on the Site;

or You have received a damaged product.

Yes.      Product is unopened and unused.

(4.2)Non-returnable Products. You do not have a right to return, replace or exchange products in respect of:

(a)products that do not fall within the ambit of clause 4.1 above;

(b)products that are classified as hazardous materials or use flammable liquids or gases;

(c) products that have been used or damaged by you or are not in the same condition as you received them;

(d)products with tampered or missing serial numbers; or

(e)products that fall under specific categories, including without limitation food, beverages, household goods, digital books, swimwear, hosiery, underwear, socks, health, contact lenses, hygiene related and personal care products and certain baby products (e.g. tethers, diapers, hygiene tissues, feeding related products) music, video and video games.

(4.3)Contacting Us (arrange a Return). You may contact us through email, social media or live chat on the Site, or by calling our call centre on +263 71 633 4437

(4.4)Your Refund:

(a)For delivered products, we will refund to you the product amount (excluding the amount paid for the original shipping fees) in full plus the cost of return:

(i)if the products are faulty or not as described on our Site; or

(ii)if the reason for return falls under clause 4.1 above.

(4.5)Refund Procedure. We will issue a refund to you depending on the method you used for payment, as follows:

(a)if you paid via Cash on Delivery, we will issue refund to through Cash; or

(b)if you paid by credit/debit card, we will issue the refund to your credit/debit card used for making the payment of such Returnable Goods on the Site.

(4.6)Refund Timelines. Your refund process will be initiated as soon as the product is picked up by us and received back by the Merchant and the refund amount would be received by you as follows:

(a)If the amount was paid through your credit/debit card, you will receive the refund amount on the respective credit/debit card in accordance with the bank’s policy;

  1. WARRANTIES, REPRESENTATIONS & UNDERTAKINGS

(5.1)You warrant, represent and undertake that:

(a)you shall fully comply and will at all times continue to fully comply with all applicable laws, statutes and regulations, including, without limitation, all privacy laws and content regulation;

(b)you have full power and authority to enter into these Terms of Sale, and make payment in accordance with these Terms of Sale; and

(c)if you purchase a product on behalf of a business entity, you represent that you are authorised to act on behalf of such business and bind the business to these Terms of Sale.

(5.2)Our services are provided to you on an “as is” basis without representations, warranties or conditions of any kind. We disclaim all warranties, conditions and representations of any kind, whether express, implied or collateral, including, but not limited to, all conditions, representations or warranties of merchantability, of fitness for a particular or general purpose, of non-infringement, of compatibility or that our services are secure or error free or will operate without interruption or will be provided in a timely or proper manner or at all.

6.LIABILITY

(6.1)Nothing in these Terms of Sale shall limit or exclude a party’s liability:

(a)for fraud, including fraudulent misrepresentation, perpetrated by that party;

(b)for death or personal injury caused by the negligence of that party; or

(c)for any other liability that cannot be limited or excluded under applicable law.

(6.2)Subject to clause 6.1, in no event will we, our parent company, subsidiaries and affiliates, and our and their directors, officers, agents, employees, suppliers, subcontractors or licensors be liable, whether based on an action or claim in contract, tort, negligence, breach of statutory duty or otherwise arising out of or in relation to these Terms of Sale for loss of profits, loss of data or information, business interruption or other pecuniary loss or for any special, indirect, incidental or consequential damages, even if we, our affiliates, directors, officers, agents, employees, licensors, subcontractors or suppliers have been advised of the possibility of such damages.

(6.3)In addition, to the extent permitted by applicable law, we (including our parent company, subsidiaries and affiliates and our and their directors, officers, agents, employee, suppliers, subcontractors or licensors) are not liable, and you agree not to hold us responsible, for any damages or losses resulting directly or indirectly from:

(a)supplying the products late or not supplying any part of them if this is caused by you not giving us the information we need within a reasonable time of us asking for it or making payment as required;

(b)damages that may result from the unauthorized repair of the product;

(c)loss of any saved/stored data in products that are either repaired or replaced;

(d)reliance by you on the content or other information provided on the Site with respect to the product you order;

(e)your use of or your inability to use the ordered product;

(f)delays or disruptions to our Site or our services;

(g)viruses or other malicious software obtained from the use of the ordered product;

(h)damage to your hardware device from the use of your ordered product; or

(i)your loss of or inability to do business or similar as a result of our inability to deliver the product to you.

(6.4)Subject to clause 6.1, if clauses 6.2 or 6.3 are held to be unenforceable or inapplicable for any reason, then the total liability (including legal fees) applicable to us, our parent company, subsidiaries and affiliates and our and their directors, officers, agents, employee, suppliers, subcontractors or licensors, to you, whether based on an action or claim in contract, negligence or breach of statutory duty or otherwise, arising out of or in relation to these Terms of Sale shall be limited to the lesser of, a) the price the product sold for on our Site and its original and return shipping costs; or b) AED 100.

(6.5)You agree to indemnify and hold us, our parent company, subsidiaries and affiliates and our and their directors, officers, agents, employee, suppliers, subcontractors or licensors harmless from and against any losses, damages and expenses (including legal fees and attorney’s fees) arising out of or relating to:

(a)any claims or demands made by any third party due to or arising out of your use of the Site and our services;

(b)your violation of any of provisions of these Terms of Sale, including, without limitation, any of the warranties, representations and undertakings; or

(c)your violation of any applicable laws.

7.GENERAL

(7.1) Governing Law. These Terms of Sale and any non-contractual rights or obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Zimbabwe.

(7.2)Dispute Resolution:

(a)If you are not satisfied with any products that you have purchased using our Site, you should contact us through email, social media or live chat on the Site, or by calling our call centre on +263 71 633 4437.

(b)If you are unable to resolve your issue under clause 7.2 (a) within forty-five (45) days of notifying the seller of your issue, any disputes or claims arising out of or in connection with these Terms of Sale, including any non-contractual rights or obligations arising out of or in connection with these Terms of Sale shall be referred to and finally resolved by arbitration under the Arbitration Rules. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Harare. The language to be used in the arbitration shall be English

(7.3)Third Party Rights. A person who is not a party to these Terms of Sale has no right to enforce any of its term.

(7.4)Relationship of the Parties. Nothing contained in these Terms of Sales will be deemed or construed by the parties or any third party to create the relationship of partnership or joint venture between the parties, it being understood that the parties will at all times remain independent parties contracting for services.

(7.5) Further Assurances. The parties will do and execute or arrange for the doing and executing of each necessary act, document and anything reasonably within its power to implement and give effect to these Terms of Sale to its full extent, including, without limitation, assisting each other in complying with applicable law.

(7.6) Assignment. These Terms of Sale will be binding upon and ensure to the benefit of the parties and their respective successors and permitted assigns. You agree that you will not assign or transfer these Terms of Sale or any of your rights or obligations under these Terms of Sale, whether directly or indirectly, without first obtaining our prior written consent, such consent not to be unreasonably withheld.

(7.7)Entire Agreement. These Terms of Sale and the documents referred to or incorporated herein by reference contain the entire agreement between the parties with respect to the subject matter and supersede all prior agreements, negotiations and representations, written or oral, relating to its subject matter. Except as provided in these Terms of Sale and the documents referred to or incorporated into these Terms of Sale by reference, there are no conditions, representations, warranties, undertakings or agreements between the parties whether direct, indirect, collateral, express or implied.

(7.8)Amendment. These Terms of Sale cannot be modified, varied, amended or supplemented in any way by you. We reserve the right to modify, vary, amend or supplement these Terms of Sale at any time and from time to time. We will post the current version of these Terms of Sale on the Site and each such change will be effective upon posting on the Site or upon the date designated by us as the “effective date” (if any). Your continued use of the Site and our services following any such change constitutes your agreement to be bound by and its acceptance of these Terms of Sale as so modified.

(7.9) Severability. If any provision of these Terms of Sale is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, that provision will be severed from these Terms of Sale and the remaining provisions will continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either of the parties.

(7.10)Force Majeure. Neither party will be liable for any loss or damage or for any delay or failure in performance due to acts beyond the control of such party whether or not such acts could reasonably be anticipated (including acts of God, legislative, judicial or regulatory acts of any provincial or the federal government, court or regulatory authority, acts of any of our subcontractors or any third party providers of goods or services to us, labour disruptions, blackouts, embargoes).

(7.11)No Waiver. Any waiver by us of any of the provisions of these Terms of Sale will not constitute a waiver of any other provision (whether similar or not), nor will any such waiver constitute a continuing waiver of that particular provision, unless expressly provided by us in writing.

(7.12) Survival. All provisions that either expressly or by their nature survive, will survive suspension or termination of your membership of the Site.