Terms and Conditions:
GENERAL TERMS AND CONDITIONS OF SALE
By clicking on “I accept” alongside the link where these Terms may be displayed, or actually using the Goods or Services, you hereby agree to be bound by and accept these Terms with NAVIGATOR BIOCHEM (PTY) LTD (registration no. 2018/073620/07), a private company having its registered address at Stoneridge Office Park, Block C Ground Floor, 8 Greenstone Place Stoneridge Gauteng, 1609, South Africa (“Navigator”). These Terms also apply to any Goods or Services you later acquire from Navigator.
These Terms apply to all Goods or Services sold by Navigator to the Customer and shall take precedence over any terms which may be contained in the Customer’s Order or other documentation and may only be altered with the express written agreement of Navigator.
“Customer” means the customer accessing the Navigator Goods and Services;
“Documentation” means the material safety data sheet of the Goods including product labelling and Services as updated by Navigator from time to time.
“Goods” means the goods described in the Order including any Documentation;
“Order” means the order for Goods and/or Services which is subject to use in accordance with the Documentation and to these Terms;
“Personal Information” is information that can be used to identify an individual, either alone or in combination with other information.
“Services” means Navigator’s services including but not limited to (i) submitting a DNA Swab for processing and testing DNA (“DNA Swab”) in order that Navigator can interpret data from the Customer’s DNA Swab and provide recommendations, (ii) uploading Customer’s Personal Information and managing it on the Navigator website, and/or (iii) creating and using a free Navigator account without providing the Customer’s DNA Swab, and use of the Website (including any information contained therein) as accessed from time to time by the Customer.
“Terms” means these terms and conditions of sale, the contents of the Customer’s Orders and any written acceptance of the Customer’s Orders by Navigator.
“Website” means the Navigator website at https://www.navigatorchem.co.za/.
2.1 The Customer’s use of Services is subject to these Terms. Except as specified herein, these Terms apply to any procurement of goods and/or use of the Services.
2.2 The Customer acknowledges having read the terms and condition below and agrees that the conditions are incorporated into each and every contract for the supply of Goods and/or Services made between Navigator and the Customer after the acceptance date.
2.3 The Customer agrees that if Navigator varies the conditions from time to time after the acceptance date and provides reasonable notice to the Customer of the variation, the conditions as varied are incorporated into each and every contract for supply of Goods and/or Services made between Navigator and the Customer after the date of such notice.
2.4 Navigator confirms its acceptance of any Order by making the Goods and/or Services available to the Customer.
- The Customer shall purchase Goods from Navigator subject to an Order which specifies the quantities and particulars of the Goods required and subject to use in accordance with the Documentation. Navigator shall be entitled in its sole discretion to decline any Order Each Order accepted by Navigator shall be and constitute a separate contract. Customer is responsible for any and all consents, approvals, licenses, or other authorisations necessary for the performance of its obligations and use of the Goods under these Terms.
- Once an Order is agreed, a binding contract subject to the Terms will have been entered into by and between Navigator and the No variation and/or cancellation is agreed without the consent of Navigator. Should the cancellation involve the return of goods already delivered, the provisions of clause shall apply mutatis mutandis. A certificate by a director of Navigator shall, ipso facto, be proof of the amount of ancillary charges incurred and shall be sufficient to discharge the burden of proof for the purposes of pleading, and no further evidence is required.
- Navigator does not provide medical advice but rather information to enable the Customer to better understand the health risks and benefits associated with the Customer’s DNA test. Navigator recommends the Customer consult with a qualified medical practitioner for medical advice.
- Navigator engages with its in-house or third-party laboratories using effective operational processes in order to handle samples. Despite Navigator’s implemented measures against technical and operational issues, laboratories are from time to time susceptible to errors (e.g. DNA mislabelling, sample errors, failure to obtain an interpretable report), which may result in Navigator being unable to obtain interpretable results. The Customer acknowledges this and agrees that the Services are provided “AS-IS” basis.
- Navigator does not endorse, warranty or guarantee the effectiveness of any specific course of action, resources, tests, physician or other health care providers, medical devices or other products, procedures, opinions, or other information that may be mentioned on the Website which is intended for informational purposes only. The Customer agrees that it shall discuss any medical concerns with the Customer’s doctor or medical provider.
- CUSTOMER REPRESENTATIONS AND WARRANTY
- The Customer confirms that it is eighteen (18) years of age or older.
- The Customer gives permission to Navigator, its contractors, successors and assignees to perform testing services on the DNA extracted from the Customer’s DNA Swab and the Customer specifically request Navigator to disclose the results of analyses performed on the Customer’s DNA to the Customer and to others as specifically authorised by the Customer.
- The Customer guarantees that any sample it provides is the Customer’s saliva; if the Customer agreeing to these Terms on behalf of a person for whom it has legal authorisation, the Customer confirms that the sample provided will be the sample of that person.
- The Customer agrees that any DNA Swab it provides and all resulting data may be transferred and/or processed outside the country in which it resides.
- The Customer understands that the Services are not designed to diagnose, prevent, or treat any condition or disease or to ascertain the state of the Customer’s health in the absence of medical and clinical information. The Customer shall seek the advice of a physician or other health care provider if it has questions or concerns arising from its use of the Services.
- The Customer understands that all the Customer’s Personal Information will be processed in accordance with the Navigator Privacy Statement.
- The Customer warrants that it will not use the Services for any purpose that is unlawful or prohibited by these Terms. The Customer acknowledges and agrees that it is solely responsible for (and that Navigator has no responsibility to the Customer or to any third party for) any breach of the Customer’s obligations under the Terms and for the consequences (including any loss or damage which Navigator may suffer) of any such breach. In case of breach of any one of these agreements Navigator has the right to suspend or terminate the Customer’s account and refuse any and all current or future use of the Services (or any portion thereof) and the Customer will defend and indemnify Navigator and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
- CUSTOMER ACCOUNT LOGIN
6.1 After the Customer has purchased the Service, the Customer will create a password and account. The Customer is responsible for maintaining the confidentiality of the password and account and is fully responsible for all activities that occur under the Customer’s password or account. The Customer shall immediately notify Navigator of any unauthorised use of the Customer’s password or account or any other breach of security. Navigator will not be liable for any loss or damage arising from the Customer’s failure to comply with this section.
6.2 In consideration of the Customer’s use of the Services, the Customer agrees to (a) provide true, accurate, current and complete information as prompted by the Service; and (b) maintain and promptly update the registration information to keep it true, accurate, current, and complete.
7.2 If Navigator is involved in a merger, acquisition, or sale of all or a portion of its assets, the Customer will be notified via email of any change in ownership or uses of the Customer’s Personal Information, as well as any choices the Customer may have regarding its Personal Information.
- EXPORT CONTROL
Customer shall not use, export, re-export, or provide access to the Goods, Services or Documentation in any form in violation of any applicable export or import laws of any jurisdiction.
- OWNERSHIP AND RISK
- Notwithstanding delivery of any Goods, ownership shall not pass until the purchase price has been paid in full. The risk of damage, theft and destruction of the Goods shall pass to the Customer upon delivery of the Goods.
- Delivery of the Goods shall take place ex Navigator’s Johannesburg warehouse. All risk in and to the Goods shall pass to the Customer upon delivery. Navigator shall use commercially reasonable efforts to deliver the Goods at the earliest possible time but in no instance can Navigator accept liability for any loss or damage arising from the late delivery of the Goods and time shall not be of the essence of the contract. No liability shall attach to Navigator as a result of the failure to deliver if such failure is due to circumstances beyond Navigator’s control.
- INTELLECTUAL PROPERTY
- The Customer acknowledges and agrees that Navigator (or Navigator licensors, as applicable) own all legal right, title, and interest in and to the Services, including any intellectual property rights (including but not limited to patents) which subsist in the Services (whether those rights are registered or not, and wherever in the world those rights may exist). The Customer further acknowledges that the Services may contain information which is designated confidential by Navigator and that the Customer shall not disclose such information without Navigator’s prior written consent.
- The Customer further acknowledges and agree that the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. The Customer further acknowledges and agree that information presented to it through the Services or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws.
- Navigator Chemicals™, Yield Plus™, Yield+™, Yield NaviPLUS™, Yield+Gene™, NAVIGATOR BIOCHEM™, NAVIPLUS™, NaviFOG™, NaviAIR™ the Navigator picture logo, and any other trademarks as may be notified on Navigator’s website from time to time, are proprietary trademarks of Navigator and protected by applicable South African copyright and trademark laws. Except as agreed to by Navigator in writing, the Recipient receives no rights to use any of Navigator’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. All other uses by the Recipient of Navigator trademarks on any media whatsoever, including any websites, including use of any Navigator logos and trademarks (as opposed to trademarks that consist solely of words) require Navigator’s prior written consent.
- The Customer shall not in any way represent that it has any rights of any nature in the trademarks, intellectual property or in any registration thereof in respect to Navigator. The Customer shall not register any of the trademarks and/or include any intellectual property rights which is deceptively or confusingly similar to the trademarks and/or intellectual property rights or any part of them as part of its company or close corporation name which it is associated with either directly or indirectly under any circumstances. The Customer shall not modify, stylise, translate or combine any of Navigator’s trademarks. Nothing contained in these Terms shall be deemed to grant the Customer any right of ownership, goodwill, title or interest in Navigator’s trademarks.
- Navigator does not claim ownership of the information or DNA Swab information the Customer provides to Navigator (including feedback and suggestions) or post, upload, input, or submit to the Service. The Customer’s DNA Swab, once submitted to and analysed by us, is processed in an irreversible manner and cannot be returned to the Customer. Any genetic information derived from the Customer’s saliva remains the Customer’s information, subject to rights we retain as set forth in these Terms. The Customer understands that it does not expect any compensation from Navigator as a result of having the Customer’s genetic information processed; made available to the Customer; or, as provided in the Privacy Statement and Terms, shared with or included in aggregated information shared with research partners, including commercial partners. The Customer understands that by providing any sample containing its Personal Information, it acquires no rights in any research or commercial products that may be developed by Navigator or its collaborating partners.
- PAYMENT AND PRICING
- The prices payable by the Customer to Navigator for the Goods and/or Services shall be the prices stipulated in writing by Navigator at the time the Order for the Goods and/or Services is placed by the Customer in terms of clause, and such prices shall be exclusive of Value Added Tax.
- Should Navigator agree to deliver the Goods to the Customer, then in addition to the purchase price payable for the Goods, the Customer shall pay to Navigator all costs of delivery of the Goods to the address stipulated in the Customer’s Order, including, without limiting the generality of the foregoing, the cost of insurance.
- All prices quoted are subject to availability.
- Unless otherwise agreed in writing by Navigator, the purchase price for the Goods and/or Services together with the costs of delivery of the Goods, if applicable, shall be paid in advance by the Customer to Navigator into a bank account to be nominated by Navigator to the Customer in writing from time to time.
- Payment of the purchase price is non-refundable and shall be without set-off or deduction, and free of exchange.
- In the event of any dispute arising between Navigator and the Customer on any aspects of the account, the Customer shall not be entitled to withhold any payments due by it in terms of its agreement with Navigator. Navigator shall be entitled to recover and accept these payments. The acceptance of the payments by Navigator shall be without prejudice to and shall not in any manner whatsoever affect any other rights Navigator may have against the Customer.
- Navigator shall be entitled to institute proceedings against the Customer in respect of any matters relating to any amount owing to Navigator in any Magistrate’s Court having territorial jurisdiction over the Customer, notwithstanding that the claim or the value of the matter in dispute may exceed the jurisdiction of the Magistrate’s Court. The Customer further agrees to be liable for all legal costs of such proceedings on the scale as between attorney and own client. The Customer further agrees to be liable for all collection charges incurred by Navigator with any collection agency or like organisation in attempting to recover outstanding monies due by the Customer to Navigator.
- Should it be necessary for Navigator to proceed against the Customer in a Court of Law at any time, the whole amount outstanding on the Customer’s Account will immediately become due and payable, notwithstanding the fact that a portion of the amount would not be due in accordance with the requested terms of payment.
- LIMITATION OF LIABILITY
- Notwithstanding anything to the contrary in these Terms, but always subject to the provisions of clauses Navigator’s liability in respect of any failure howsoever arising out of this Agreement or in delict or by operation of statute or otherwise, shall be limited to an amount equal to the amount of the purchase price of such Goods or Services and, in any event, Navigator shall not be liable for any incidental, consequential loss, loss of profit, loss of income, loss of production, loss of business opportunities, loss of custom, loss of goodwill, special damages or any indirect loss of the Customer of whatsoever nature and howsoever arising.
- Notwithstanding anything to the contrary contained in this Agreement or elsewhere, Navigator shall not be held liable in terms of this Agreement or in delict or by operation of statute or otherwise in the event that:
- the Customer makes any modification to the Goods without obtaining the prior written consent of Navigator; and
- the Goods are used and stored by the Customer in such manner or form which is contrary to the Documentation and instructions for such Goods.
- Any advice or assistance given, technical recommendations or similar indications or representations otherwise given or made, is given in good faith but without obligation and subject specifically to the exclusion of any liability whatever on Navigator’s part, or on the part of Navigator’s staff for damages whether direct or consequential or otherwise howsoever and any reliance thereon is entirely at the Customer’s own risk.
- This exclusion of liability shall relate to claims for breach of contract as well as for alleged negligence on the part of Navigator. The Customer indemnifies Navigator against any claims, liability, cost, expense or penalty suffered or incurred that may be made against Navigator by any third party for any damages including, but not limited to, consequential loss or loss of profits in connection with the Customer’s failure to use the Goods and/or Services in accordance with Navigator’s instructions and Documentation, whether such claims are in respect of damage to property, consequential loss, personal injury or death.
14.1 Navigator warrants that it the Services will be performed using reasonable skill and care. The sole and exclusive remedy for breach of this warranty is Navigator’s re-performance of the defective Services.
14.2 Subject to s14.1 above, no other warranties or representations, either express or implied, are made with regards to the Goods and/or Services or the efficacy of the Goods and/or Services. No advice or information, whether oral or written, obtained through or from the provision of these services, will itself create any warranty or representation or other obligation. The Customer’s use of the Goods and/or Services is entirely done at the Customer’s risk.
14.2 Navigator makes no warranty that (a) the Services will meet the Customer’s requirements; (b) the Services will be uninterrupted, timely, unfailingly secure, or error-free; (c) the results that may be obtained from the use of the Services will be accurate or reliable; (d) the quality of any products, services, information, or other material purchased or obtained by the Customer through the Services will meet the Customer’s expectations (e) any errors on the website will be corrected, and (f) no advice or information, whether oral or written, obtained by the Customer from Navigator or through or from the Services shall create any warranty not expressly stated in the Terms. Navigator does not control or endorse any actions resulting from the Customer’s participation in the Services and, therefore, Navigator specifically disclaims any liability with regard to any actions by the Customer resulting from its participation in the Services.
15.1 The Customer agrees to defend and hold Navigator, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of the information the Customer submits, posts, or transmits through the Service; the Customer’s use of the Service; the Customer’s connection to the Service; the Customer’s violation of the Terms; or the Customer’s violation of any rights of another.
15.2 If the Customer has submitted a DNA Swab, the Customer will defend and hold harmless Navigator, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from testing the Customer’s DNA Swab and/or analysing the genetic information, which is disclosed to the Customer consistent with the Privacy Statement.
In the event of the Customer committing any breach of these Terms including, but not limited to, the failure to make payment of the purchase price as agreed, Navigator shall be entitled forthwith to claim repossession of the Goods, for which purpose the Customer hereby irrevocably authorises Navigator, through its duly authorised representative/s, to enter upon the premises where the Goods are kept, to take repossession of the Goods. The exercise of this right shall not preclude Navigator from its right to claim damages from the Customer occasioned by its breach. Navigator shall, in the alternative, be entitled to enforce the provisions of these Terms and claim payment of the full amount due by the Customer, any instalments of the price falling due in the future to become due and payable immediately. In such an event, Navigator shall be entitled to charge interest on overdue amounts as provided in the clause above. Should Navigator take legal action against the Customer in the event of the Customer’s breach, the Customer shall be liable for all legal fees incurred by Navigator in the recovery of any amounts owing, including costs on the attorney and own client scale and collection commission. If the Customer breaches these Terms and Navigator elects not to cancel the agreement of sale, Navigator shall be entitled to suspend performance of any of its obligations until the Customer has complied with its obligations.
Navigator and its agents shall not be liable to the Customer or any other third party for any direct, indirect or consequential loss or damage or for any loss of profit, revenue or business, whatsoever and howsoever caused, whether arising from negligence or breach of these Terms.
No relaxation or indulgence granted to the Customer by Navigator, at any time, shall be deemed a waiver of any of Navigator’s rights in terms hereof, and such relaxation or indulgence shall not be deemed a novation of any Terms set out herewith or create any estoppel against Navigator.
- SUSPENSION OR CANCELLATION OF DELIVERY
Navigator reserves the right to suspend, delay or cancel the delivery of some or all of the Goods or to require advance payment for them if: the Customer is insolvent or is unable to pay its debts, or seeks to effect any compromise with any of its creditors or compound any of its debts, or the Customer is placed under an order of sequestration, judicial management or liquidation, whether such order be provisional or final; or the Customer is the subject of any resolution passed to enable it to be wound-up or dissolved, or any judgement is given against it in any court of law which remains unsatisfied for a period of 10 (ten) days; or the Customer is in breach of any of its obligations to Navigator. Any suspension, delay or cancellation as a result of any of the foregoing events shall not affect any other right which Navigator may have against the Customer based on these Terms or otherwise.
- Either party may terminate these Terms for convenience by providing the other written notice of its intention to terminate the same. The Customer’s notice should be sent, in writing, to Navigator’s address or by email.
- Cooling Off Period. If the Customer is a consumer as provided for under the South African Consumer Protection Act, No 68 of 2008, the Customer can return the goods bought or cancel an order for Services within five (5) days after the date the Customer received the Goods or ordered the Services, without penalty and for convenience.
- Navigator may at any time, terminate its agreement with the Customer (and the Customer’s password and account) if: (1) the Customer has breached any provision of the Terms; (2) Navigator is required to do so by law (for example, where the provision of the Services to the Customer is, or becomes, unlawful). The Customer acknowledges and agrees that Navigator shall not be liable to the Customer or any third party for any termination of the Customer’s access to the Services.
- Termination of these terms and conditions or any Order does not (i) relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under the Terms or Order, or (ii) limit either party from pursuing other remedies available to it, including injunctive relief.
- The parties’ rights and obligations under this section and sections entitled “Payment”, “Privacy”, “Ownership and Risk”, “Intellectual Property”, “Limitation of Liability”, “Warranty”, “Termination”, “Confidentiality” survive the termination of these Terms and any Order.
- INABILITY TO SUPPLY OR DELIVER
If Navigator cannot deliver, cannot deliver timeously, some or all of the Goods and/or Services for any reason beyond its control, including but not limited to lack of instruction from the Customer, stock shortage, industrial dispute or break-down, production delays, government action, state of war, riot, or civil disturbance, natural disasters, pandemics or act of God, Navigator may, in its discretion, cancel the whole or any part of the agreement of sale forthwith. In the event of such cancellation, Navigator shall not be liable for any loss whatsoever (including any consequential loss of profits, special damages or any indirect loss) thereby caused.
Unless otherwise set out in these Terms, there are no rights of returns of any Goods. Navigator will not accept returns of Goods from Customer nor will Navigator provide Customer with any allowance, credit or discount for Goods which Customer may wish to return, or for other fees paid or due to Navigator hereunder.
Each party undertakes in favour of the other party to keep all information received by it in terms of these Terms from any other party confidential and not to disclose any such information to any third party, without the prior written consent of the party to whom the confidential information pertains.
- SEVERABILITY CLAUSE
If any portion of these Terms is found to be unenforceable, the remaining portion will remain in full force and effect
Navigator reserves the right to amend the terms of the Agreement, effective upon posting at www.navigatorchem.co.za, or notifying the Customer otherwise. If the Customer does not want to agree to changes to the Agreement, the Customer can terminate the Agreement at any time per the Termination section.
The Customer may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to the Customer. We may also substitute, by way of unilateral novation, effective upon notice to the Customer, Navigator for any third party that assumes rights and obligations under this Agreement.
Any notice addressed to a party shall be sent by email or to its physical address by prepaid registered post or delivered by hand. Any notice shall be deemed to have been given:
- If posted by prepaid registered post, 10 (ten) days after the date of posting thereof;
- If hand-delivered, on the day of delivery; or
- If sent by electronic mail on the date of sending of such electronic mail.
- GOVERNING LAW
These Terms shall be governed and be construed in accordance with the laws of the Republic of South Africa and the parties submit to the exclusive jurisdiction of the Johannesburg courts, in all matters relating to or arising under these Terms.
- CONSENT TO JURISDICTION
For the purpose of any legal proceedings, the Customer hereby consents to the jurisdiction of any Magistrate’s Court having jurisdiction over the parties. This notwithstanding it shall not preclude Navigator from instituting action out of any division of the High Court of South Africa having jurisdiction.
- ENTIRE AGREEMENT
The parties agree that this is the entire agreement, regardless of any representations that may have been made regarding the Goods and/or Services or the agreement and no variation, waiver, suspension, an extension of time or agreement to cancel shall be of any force or effect unless contained in a written document and signed by both parties.