terms and conditions
Terms and Conditions
TERMS AND CONDITIONS FOR MEMORIAL WALL WEBSITE
Introduction
These terms and conditions govern your use and engagement with our website, which markets a Columbarium and memorial wall. By using our website, you agree to be bound by these terms and conditions. If you do not agree to these terms and conditions, please do not use our website.
Definitions
In these terms and conditions, the following definitions shall apply:
“we”, “us”, and “our” refer to the owners and operators of the website.
“you” and “your” refer to the user or customer of the website.
“Columbarium and memorial wall” refer to the wall consisting of niches where cremated ashes are stored.
Use of the Website
You agree to use our website only for lawful purposes and in a manner that does not infringe the rights of, restrict or inhibit anyone else’s use and enjoyment of the website. You are not allowed to use our website for any commercial purposes without our prior written consent.
Intellectual Property
All intellectual property rights, including copyright, in our website and its content belong to us or our licensors. You may not copy, reproduce, modify, distribute, republish, display, post or transmit any part of our website without our prior written consent.
Payments
The payment for the reservation of a niche in the memorial wall will be made through our website using a secure payment gateway. Payments are non-refundable and non-transferable, except as expressly stated in these terms and conditions.
Privacy
We are committed to protecting your privacy. Please read our Privacy Policy carefully to understand how we collect, use and store your personal information.
Limitation of Liability
We will not be liable for any loss or damage, including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of our website.
Changes to these Terms and Conditions
We reserve the right to change these terms and conditions at any time without notice to you. By continuing to use our website, you agree to be bound by the revised terms and conditions.
Governing Law
These terms and conditions shall be governed by and construed in accordance with the laws of South Africa. Any dispute arising out of or in connection with these terms and conditions shall be subject to the exclusive jurisdiction of the Magistrate’s Courts of the City of Tshwane.
Contact Us
If you have any questions about these terms and conditions or any other aspect of our website, please contact us using the details provided on our website.
By using our website, you agree to be bound by these terms and conditions.
TERMS AND CONDITIONS FOR PURCHASING A NICHE FROM FAERIE GLEN MEMORIAL WALL
1. PREAMBLE
1.1. Whereas Faerie Glen Memorial Wall built a Wall of Remembrance on the Property of Doxa Deo Faerie Glen located on the corner of Atterbury Road and Olympus Drive, Olympus, Pretoria, to be used for the inurnment of cremated human remains and;
1.2. Whereas the Purchaser desires to purchase from Faerie Glen Memorial Wall a reservation for the use of a Niche for the inurnment of a Designee or Designees in the Wall of Remembrance.
2. PARTIES
The Parties to this Agreement are:
2.1. Faerie Glen Memorial Wall, a South African resident company, having its principal place of business at:
2.1.1. Physical Address: Plot 7, Corner Atterbury Road East and Olympus Drive, Olympus, Pretoria;
2.1.2. Telephone: 012 991 3883
2.1.3. Email: faerieglen@doxadeo.org
(hereinafter referred to as Faerie Glen Memorial Wall)
and
2.2. The Purchaser as Identified through the online registration process whose further particulars are as submitted by the Purchaser on the Faerie Glen Memorial Wall Website.
(hereinafter referred to as the Purchaser)
3. INTERPRETATION
3.1. In this Agreement, unless otherwise specified or the context clearly indicates a contrary intention, the following words and expressions shall have the meanings assigned to them below:
3.1.1. “Acceptance Date” means the date on which the Purchaser hereto signs this Agreement;
3.1.2. “Agreement” means this reservation of Niche Use Agreement and all annexures, addendums and schedules thereto from time to time;
3.1.3. “Business Day(s)” means any day excluding a Saturday, Sunday or Public Holiday in the Republic of South Africa;
3.1.4. “Calendar Day(s)” means any day, including a Saturday, Sunday or Public Holiday in the Republic of South Africa;
3.1.5. “Designee(s)” means the individual whose cremated remains will be inurned within the Niche as identified in this Agreement;
3.1.6. “Doxa Deo Faerie Glen” means the Apostolic Faith Mission of South Africa: Doxa Deo Tshwane Assembly;
3.1.7. “Granite Identification Plaque” means the granite plaque that will be attached to the purchased Niche in order to identify the Designee(s) whose cremated remains are stored in the specific Niche;
3.1.8. “Initiation Fee” means a once of fee that is charged in order to cover the granite, inscription and building fees of the applicable Niche;
3.1.9. “Niche” means the 225 mm x 110 mm x 205 mm space assigned to the Purchaser for the inurnment of cremated human remains;
3.1.10. “Parties” means Faerie Glen Memorial Wall and the Purchaser collectively and the term ”Party” shall mean any one of them as the context may require;
3.1.11. “Storage Fee(s)” means the fee payable, annually, for the storage of the cremated remains of the Designee(s) in the identified Niche;
3.1.12. “VAT” means Value-Added Tax as levied in terms of the Value-Added Tax Act, No. 89 of 1991 as amended or re-enacted from time to time.
3.1.13. “Wall of Remembrance” means the Wall of Remembrance built on the property of Doxa Deo Faerie Glen on the corner of Atterbury Road and Olympus Drive, Olympus, Pretoria.
3.2. Any reference to:
3.2.1. the singular shall include the plural and vice versa;
3.2.2. any gender shall include the other genders.
3.3. Any reference to an enactment is to that enactment as at the Signature Date and as amended or re-enacted from time to time.
3.4. The headings of clauses in this Agreement are for reference purposes only and shall not be considered in construing the contents hereof.
3.5. If any word or phrase is defined in any clause hereunder, that word or phrase shall bear the same meaning throughout the remainder of this Agreement.
3.6. If any provision in a definition is a substantive provision, conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
3.7. When any number of days is prescribed in this Agreement, same shall (unless otherwise stated) be reckoned exclusively of the first and inclusively of the last
day, unless the last day falls on a day other than a Business Day, in which case the last day shall be the immediately following Business Day.
3.8. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
3.9. Where any term is defined within the context of a particular clause in this Agreement, it shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
3.10. The expiration or termination of this Agreement shall not affect such of the provisions contained herein that expressly provide that they will operate after such expiration or termination or which out of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide therefore.
3.11. The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.
3.12. The words ”include”, ”including” or ”such as” shall, if used in this Agreement, be construed as referring to examples and shall not be construed as limiting the generality of any preceding word(s).
3.13. The annexures, addendums and / or schedules hereto are integral and are incorporated as part of the Agreement.
4. INURNMENT OF CREMATED HUMAN REMAINS
4.1. The Purchaser hereby purchases and Faerie Glen Memorial Wall hereby sells to the Purchaser the right to use a Niche(s) in the Faerie Glen Memorial Wall Wall of Remembrance for the exclusive purpose of the inurnment of the cremated human remains of the Designee(s).
5. IDENTIFICATION OF NICHE
5.1. The Parties agree that the Purchaser purchased the right to use the Niche as identified through the online reservation process as is identified in the Niche placement plan within the Wall of Remembrance.
5.2. The Purchaser shall have the right to use the Niche in accordance with the terms and conditions of this Agreement.
6. IDENTIFICATION OF DESIGNEE(S)
6.1. The Niche whose use is reserved by this Agreement will be used to inurn the cremated remains of the individual(s) (the Designee(s)) as identified by the Purchaser through the online reservation process.
7. PAYMENT TERMS
7.1. The Purchaser will pay to Faerie Glen Memorial Wall the following amounts:
7.1.1. An Initiation Fee of R3 400-00 (Three Thousand Four Hundred Rand), excluding VAT, on the signature date of this Agreement;
7.1.2. An annual Storage Fee of R240-00 (Two Hundred and Forty Rand), excluding VAT, payable on or before the 31st of January of every year for the duration of this Agreement.
7.1.3. The annual Storage Fee will escalate with the Consumer Price Index +1% as published by STATS SA during the month of October of each year.
7.1.4. Should the Purchaser choose to pay the annual Storage Fees in advance he/she may do so. In such a case the Storage Fee will amount to R 7 500-00 (Seven Thousand Five Hundred Rand Alone) once off.
8. DURATION OF THIS AGREEMENT
8.1. The Purchaser has the right to utilize the Niche for a period of 30 (thirty) years from the Acceptance Date of this Agreement subject to the payment of the fees referred to in this Agreement.
8.2. The Purchaser may renew this lease for an additional agreed upon term between the Parties on the terms and conditions contained in this Agreement save that additional Storage Fees will be payable as determined by Faerie Glen Memorial Wall in its sole discretion.
9. OBLIGATIONS OF THE PURCHASER
9.1. The Purchaser shall:
9.1.1. arrange for the actual inurnment of the Designee(s)’ cremated remains within the allocated Niche within the Wall of Remembrance;
9.1.2. arrange for the engravement of the Granite Identification Plaque that will be used to cover the Niche;
9.1.3. ensure that the Granite Identification Plaque is:
9.1.3.1. a standard “Rustenburg Black” Plaque;
9.1.3.2. the correct size and dimensions to fit in the allocate space within the Wall of Remembrance;
9.1.3.3. engraved as per the specifications communicated to the Purchaser via email.
9.1.4. cover all costs pertaining to the Granite Identification Plaque, including, but not limited to, the purchase price of the Plaque and the cost for the engravement of the Plaque;
9.1.5. arrange any and all applicable Memorial and/or Placement Ceremonies with Faerie Glen Memorial Wall;
9.1.6. ensure that the urn used for the inurnment of the Designee(s)’ remains will fit the space available within the Niche;
9.1.7. ensure that his/her next of kin carries proper instructions as to the Agreement should he/she become incapable, for whatever reason, to manage this Agreement during its duration.
9.2. The Purchaser may not sell, transfer, or encumber the right to use the Niche.
10. OBLIGATIONS OF FAERIE GLEN MEMORIAL WALL
10.1. Faerie Glen Memorial Wall shall:
10.1.1. Maintain the Wall of Remembrance and the surrounding garden in a state of good repair;
10.1.2. Insure that Wall of Remembrance against damage and or loss and;
10.1.3. Apply quality control to ensure uniformity of all Plaques and Niches.
10.2. By this Agreement, Faerie Glen Memorial Wall provides only the use of a Niche. Faerie Glen Memorial Wall does not agree to perform, arrange, or pay for the cremation of the bodies of the Designee(s).
11. TERMINATION OF THIS AGREEMENT
11.1. This Agreement may, prior to the expiry date, be terminated by the Purchaser by giving Faerie Glen Memorial Wall 1 (one) calendar month’s written notice to that effect.
11.2. This Agreement will terminate in the event that
11.2.1. no inurnment in the Wall of Remembrance shall have occurred within 2 (two) years after the death of the Designee(s) stipulated in the registration process, unless Faerie Glen Memorial Wall, in its sole discretion, agrees to extend the reservation thereafter.
11.2.2. the Purchaser does not pay his/her annual Storage Fees and does not correct the non-payment within 30 calendar days after receipt of notice of such failure.
11.3. If this Agreement is terminated for whatever reason and the Purchaser is not available for instructions regarding the Designee(s)’ inurned remains Faerie Glen Memorial Wall will have the right to discard the inurned remains in accordance with the statutory provisions provided for in South African legislation at that time after 30 days’ notice to the Purchaser at his/her Domicilium Address.
12. RIGHTS OF FAERIE GLEN MEMORIAL WALL
12.1. Faerie Glen Memorial Wall may adopt Rules and Regulations for the Wall of Remembrance.
12.1.1. 12.1The Purchaser acknowledges that Faerie Glen Memorial Wall may, in its sole discretion, amend the Rules and Regulations (if adopted) from time to time;
12.1.2. When adopted, copies of the Rules and Regulations will be available in the Doxa Deo Faerie Glen Campus Manager’s office during office hours:
12.1.3. The Purchaser agrees that the use of a Niche and all rights and obligations under this Agreement are subject to those Rules and Regulations referred to in 12.1 (if and when adopted).
12.2. Upon the termination of this Agreement, for whatever reason, Faerie Glen Memorial Wall shall be entitled to resell the right to use the Niche identified in this Agreement.
13. LIMITATION OF RIGHTS
13.1. The purchase of a reservation to use a Niche does not convey the Purchaser any property interest in the Niche, the Wall of Remembrance, or any other property (real or personal) of Doxa Deo Faerie Glen, title to all of which shall at all times remain with Doxa Deo Faerie Glen.
13.2. The Purchaser agrees that, except in the case of gross negligence by Faerie Glen Memorial Wall, neither Faerie Glen Memorial Wall, nor anyone acting on behalf of Faerie Glen Memorial Wall shall be responsible for any damage to the Wall of Remembrance or its contents.
13.3. Neither Faerie Glen Memorial Wall, nor anyone acting on behalf of Faerie Glen Memorial Wall shall be liable for incidental or consequential damages suffered by the Purchaser and/or his/her family. The Purchaser’s sole and exclusive remedy against Faerie Glen Memorial Wall or anyone acting on behalf of Faerie Glen Memorial Wall for all claims related in any way to this Agreement or the use of the Niche in the Wall of Remembrance shall be limited to the return of the Initial Initiation Fee paid by the Purchaser to Faerie Glen Memorial Wall.
14. DISCLAIMER NOTICE AND INDEMNITY
14.1. By entering into this Agreement, the Purchaser, his/her spouse, his/her heirs in title and guests (hereinafter “Visitors”) who attend the Wall of Remembrance do so at their own risk. Doxa Deo Faerie Glen and/or Faerie Glen Memorial Wall its agent(s) and/or its employee(s) shall not be liable for, and the Visitors hereby waive(s) and abandon(s) any claims of whatever nature including but not limited to that for theft, injury, loss or damage of whatever nature, against Doxa Deo Faerie Glen and/or Faerie Glen Memorial Wall, whether arising from Doxa Deo Faerie Glen and/or Faerie Glen Memorial Wall’s default, negligence or otherwise. The Visitors, in addition to the aforesaid, hereby indemnify Doxa Deo Faerie Glen and Faerie Glen Memorial Wall against any claims which may arise from whatever nature, whether arising from Doxa Deo Faerie Glen and/or Faerie Glen Memorial Wall’s default, negligence or otherwise.
15. WARRANTEES
15.1. Faerie Glen Memorial Wall provides only the use of a Niche for the inurnment of cremated human remains in a container. By its design and construction, the Niche may not be weatherproof nor corrosion proof. No warranty, representation or agreement is or can be made concerning the effects of weather, exposure, or time upon the remains inurned in a Niche.
15.2. While Faerie Glen Memorial Wall presently anticipates that it shall operate the Wall of Remembrance at its present location for the foreseeable future, no representation is made that the Wall of Remembrance shall be maintained by Faerie Glen Memorial Wall in perpetuity. The Purchaser acknowledges that Faerie Glen Memorial Wall may in its sole discretion decide to cease the operating of the Wall of Remembrance.
16. DOMICILIUM CITANDI ET EXECUTANDI
16.1. Each Party chooses as its domicilium citandi et executandi (address for the service of notices, processes, pleadings and the like) the address set out in clause 2 of this Agreement, as well as the physical address registered by the Purchaser during the online registration process, at which address all notices and pleadings in connection with this Agreement or any other action arising there from, must effectively be served.
16.2. The domicilium citandi et executandi address of either Party may be changed with 7 days’ written notice to the other; provided that such address is within the Republic of South Africa. The other Party shall acknowledge in writing receipt of such notice.
16.3. Any notice in terms of this Agreement must be:
16.3.1. delivered by hand,
16.3.2. or sent by email.
16.4. Any notice in terms of this Agreement will, unless the contrary is proven, be considered duly received:
16.4.1. if delivered by hand, on the date of delivery; or
16.4.2. if sent by email on the date of successful transmission.
17. POPI / PROTECTION OF PERSONAL INFORMATION ACT
17.1. In this clause 17 the following definitions shall have the following meanings assigned to them:
17.1.1. “Data Subject” shall have the meaning ascribed to it in Chapter 1 of POPI;
17.1.2. “Personal Information” shall have the meaning ascribed to it in Chapter 1 of POPI;
17.1.3. “POPI” means the Protection of Personal Information Act 4 of 2013, as amended from time to time, including any regulations and/or code of conduct made under the Act;
17.1.4. “Privacy and Data Protection Conditions” shall mean the 8 (eight) statutory prescribed conditions for the lawful Processing of Personal Information which is entered into a Record and such conditions are listed in Section 4 (1) of POPI and are dealt with in detail in Part A of Chapter 3 of POPI;
17.1.5. “Processing” shall have the meaning ascribed to it in Chapter 1 of POPI;
17.1.6. “Record” shall have the meaning ascribed to it in Chapter 1 of POPI;
17.1.7. “Responsible Party” shall have the meaning ascribed to it in Chapter 1 of POPI.
17.2. The Data Subject hereby consents and authorises the Responsible Party to obtain and process such Personal Information as may be reasonably required in order to consider (in the wider sense) and facilitate conclusion and ensure and enforce compliance with a commercial transaction.
17.3. Such Personal Information may be collected and obtained from the Data Subject or from public record or another source (as the case may be).
17.4. Such Personal Information may be retained by the Responsible Party as envisaged in terms of section 14(1)(d) and/or section 14(7) of POPI and/or processed as envisaged in terms of section 11(1)(a) and/or 15(3)(a) of POPI.
17.5. The Data Subject hereby absolves the Responsible Party from compliance with the provisions of section 18(1) of POPI, read with sub-section 18(4), the contents whereof the Data Subject declares himself, herself, or itself to be aware and informed of.
17.6. The Data Subject has the right to:
17.6.1. be notified that Personal Information about him, her, or it, is being collected; and establish whether a Responsible Party holds any Personal Information of that Data Subject, and
17.6.2. request access to his, her, or its Personal Information as provided for in section 23 of POPI;
17.6.3. request where necessary the correction, destruction, or deletion of his, her of its Personal Information as provided for in terms of the provisions of section 24 of POPI;
17.6.4. and object on reasonable grounds to the Processing of his, her, or its Personal Information as provided for in terms of section 11(3)(a) of POPI; and
17.6.5. object to the Processing of his, her, or its Personal Information at any time for the purposes of direct marketing in terms of section 11(3)(b) or in terms of section 69 of POPI;
17.6.6. submit a complaint to the Regulator regarding alleged interference with the protection of Personal Information as provided for in section 99 of POPI; and
17.6.7. withdraw his, her, or its consent referred to in section 11(1)(a) at any time, as envisaged in section 11(2)(b) of POPI and/or may object, at any time to the Processing of Personal Information as envisaged in section 11(3) of POPI, it being recorded that any such withdrawal and/or objection shall be communicated to the Responsible Party in writing.
18. GENERAL
18.1. No indulgence granted by a Party shall constitute a waiver of any of that Party’s rights under this Agreement. Accordingly, that Party shall not be precluded as a consequence of having granted such indulgence, from exercising any rights against the other which may have arisen in the past or which may arise in the future.
18.2. No Agreement varying, adding to, deleting from or cancelling this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties.
18.3. This Agreement contains the entire Agreement between the Parties and neither Party shall be bound by any undertaking, representations or warranties not recorded herein or in the annexures to this Agreement.
18.4. Any provision in this Agreement which is or may become illegal, invalid or unenforceable, for any reason whatsoever, in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto (as not written in the Agreement) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
18.5. Each of the Parties hereby respectively agrees and acknowledges that:
18.5.1. it has been free to secure independent legal advice as to the nature and effect of each provision of this Agreement and that it has either taken such independent legal advice or has dispensed with the necessity of doing so; and
18.5.2. each provision of this Agreement is fair and reasonable in all the circumstances and is part of the overall intention of the Parties in connection with this Agreement.
18.6. The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.