Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 The headings of the clauses in these Terms and Conditions are for the purpose of

convenience and reference only and shall not be used in the interpretation of nor

modify nor amplify the terms of these Terms and Conditions nor any clause thereof.

Unless a contrary intention clearly appears words importing:

1.1.1 any one gender include the other genders;

1.1.2 the singular include the plural and vice versa; and

1.1.3 natural persons include created entities (corporate or non-corporate) and

the state and vice versa.

1.2 In these terms and Conditions, the following terms shall have the meanings assigned

to them hereunder and cognate expressions shall have corresponding meanings,

namely:

1.2.1 “Acceptance” means:

1.2.1.1 acknowledgement by the Customer that she is aware that any

purchase of Products and/or provision of Services are subject

to the Terms and Conditions which form a part of every

Contract concluded with LMP;

1.2.1.2 that the Customer has availed herself of the Terms and

Conditions or dispensed with the need of doing so at her own

risk; and

1.2.1.3 formal acceptance of the Terms and Conditions by the

Customer as part of the Contract to be entered into with LMP

by clicking on the appropriate icon and/or selecting the

appropriate box;

and “Accept” and “Accepted” shall bear corresponding meanings;

1.2.2 “Ad Hoc Order” means an order for Products that is completed in any way

other than by following the Order Process prescribed on the Website and

specifically consented to by LMP;

1.2.3 “Artistic Work” bears the meaning ascribed thereto in the Copyright Act

with specific reference to photographs;

1.2.4 “Business day” means a day other than a Saturday, Sunday or Public

Holiday in the RSA;

1.2.5 “Contract” means the legal agreement that:

1.2.5.1 includes:

1.2.5.1.1 these Terms and Conditions;

1.2.5.1.2 an Order or Ad Hoc Order;

1.2.5.1.3 an Acceptance by the Customer; and

1.2.5.1.4 an Order Confirmation from LMP;

and

1.2.5.2 for purposes of clarity, becomes operative between the

Customer and LMP when:

1.2.5.2.1 an Order recording the specific sale of Products

and/or rendering of Services has been Accepted

by the Customer within the meaning of clause

1.2.1;

or

1.2.5.2.2 an Ad Hoc Order or the rendering of certain

extraordinary Services recording the specific sale

of Products, has been agreed to in writing by the

Customer;

and

1.2.5.2.3 LMP issues an Order Confirmation by LMP to the

Customer at the Customer’s Email Address

indicating that it has received the Order and/or Ad

Hoc Order within the meaning of section 22 of the

ECT Act;

1.2.6 “Copyright Act” means the Copyright Act, No 98 of 1978;

1.2.7 “CPA” means the Consumer Protection Act, No 68 of 2008, as amended

from time to time;

1.2.8 “Customer” means a person and/or entity purchasing Products from LMP;

1.2.9 “Customer’s Email Address” means the email address completed by the

Customer where indicated on the Website as part of the Order Process at

which address the Customer can be expected to receive all communications

related to the Contract;

1.2.10 “Customer Physical Address” means the physical address completed as

part of the Order on the Website;

1.2.11 “Delivery Address” means the physical address made available by the

Customer to LMP for delivery of the Product and/or rendering of the

Services:

1.2.11.1 in respect of an Order as part of the order process when

completing the requisite fields on the Website in the case of an

Order; or

1.2.11.2 in respect of an ad Hoc Order by way of a written confirmation;

1.2.12 “Defective Product” means a Product that:

1.2.12.1 does not resemble the Product and/or quality described in the

Order Confirmation in a way that is material, subject to clause

8.2;

1.2.12.2 has been materially damaged;

but does not include any damage and or defect caused by:

1.2.12.3 normal wear and tear over time; or

1.2.12.4 the Customer in any way, whether as a result of the way in

which she treated and or handled the Product or whether the

Customer applied the Product for an unusual or improper

purpose;

1.2.13 “Effective date” means the date of receipt by the Customer of an Order

Confirmation, whereupon the Contract will be legally binding upon the

Parties;

1.2.14 “ECT Act” means the Electronic Communications and Transactions Act, No

25 of 2002;

1.2.15 “External Suppliers” means any third party that is involved in the

production of the Product and/or the provision of the Services;

1.2.16 “Linked Sites” means a website owned and operated by a person and/or

entity other than LMP to which website LMP has inserted a hyperlink from

where the Customer can access the Linked Site directly, including without

limitation any hyperlink directing or redirecting the Customer to a

Payment Processing Agent;

1.2.17 “LMP” means Lawrette McFarlane, an individual, trading as Lawrette

McFarlane Photography;

1.2.18 “LMP Bank Account” means the bank account stipulated by LMP on the

Tax Invoice sent to the Customer for payment;

1.2.19 “LMP Email Address” means lawrette@lawrette.com or such other email

address as may have been stated on the Order Confirmation and/or Tax

Invoice;

1.2.20 “LMP Physical Address” means the physical address where LMP can

accept service of legal documents;

1.2.21 “Order” means the placing of an electronic order by the Customer for

purposes of acquiring a specific Product and/or Service from LMP by

completion of the Order Process;

1.2.22 “Order Confirmation” means a confirmatory document sent to the

Customer Email Address stipulating the detail of the Order and/or ad Hoc

Order and/or Services, as the case may be, including without limitation:

1.2.22.1 the Product(s) being purchased by the Customer from LMP;

1.2.22.2 the number of each Product being purchased;

1.2.22.3 the Delivery Address provided by the Customer;

1.2.22.4 the amount payable by the Customer to LMP for the

Product(s);

1.2.22.5 the manner of payment; and

1.2.22.6 the VAT and/or other costs payable (if applicable);

1.2.23 “Order Process” means the steps that are to be followed by the Customer

on the Website with a view to completing an Order which includes but is not

limited to:

1.2.23.1 the selection of a Product(s) to acquire;

1.2.23.2 indicating the type of print selected for each Product;

1.2.23.3 indicating the size of each Product selected;

1.2.23.4 providing necessary Personal Information including the

Customer’s name, contact telephone number, Customer’s

Email Address and the Delivery Address; as well as

1.2.23.5 filling out all other requisite fields and/or making all requisite

selections;

1.2.23.6 selecting a payment option, proceeding to the Linked site of a

Payment Processing Agent and completing the payment

process as prescribed by the Processing Agent on the Linked

Site;

1.2.24 “Parties” means LMP and the Customer and “Party” means either one of

the Parties, as the context may determine;

1.2.25 “Payment Date” means the date upon which the monies paid by the

Customer in full settlement of a Tax Invoice are received and cleared in:

1.2.25.1 the bank account held by the Payment Processing Agent on

behalf of LMP; or

1.2.25.2 the LMP Bank Account; or

as the case may be;

1.2.26 “Payment Processing Agent” means any entity with whom LMP has

registered and/or entered into an agreement in terms whereof LMP appoints

such an entity as LMP’s agent for purposes of processing payments for

electronic Orders placed by Customers through the Website;

1.2.27 “Personal Information” bears the meaning ascribed thereto in the ECT Act;

1.2.28 “Purchase Price” means:

1.2.28.1 The total amount payable for the Product(s);

1.2.28.2 VAT and/or other applicable taxes (if applicable);

1.2.28.3 Other costs stipulated in the Order Confirmation;

as set out on the Tax Invoice;

1.2.29 “Photographer” means Lawrette McFarlane;

1.2.30 “Product” means original printed photographic images taken by the

Photographer and produced as artistic work (as that terms id defined in the

Copyright Act) according to the Customer’s chosen specifications indicated

on the Order or Ad Hoc Order (as the case may be);

1.2.31 “POPI” means the Protection of Personal Information Act, No 4 of 2013;

1.2.32 “RSA” means the Republic of South Africa;

1.2.33 “Services” means the printing and production of the Product and/or the

delivery by External Suppliers of the Product to the Delivery Address

stipulated in the Order or Ad Hoc Order;

1.2.34 “Terms and Conditions” means these terms and conditions published on

the Website from time to time and which terms and conditions govern all

purchases and are hereby expressly included in every Contract concluded

between a Customer and LMP;

1.2.35 “Tax Invoice” means the document indicating the amount owing by the

Customer to LMP in respect of the purchase of a Product by way of an

Order or an Ad Hoc Order as well as the VAT (if any) payable in respect

thereof, the cost of delivery of the Product(s) to the Delivery Address (if any)

and all other costs payable by the Customer in accordance with the terms of

the Contract;

1.2.36 “VAT” means value-added tax payable in terms of the VAT Act;

1.2.37 “VAT Act” means Value-Added Tax Act, No 89 of 1991;

1.2.38 “Website” means the Lawrette McFarlane Photography website which is to

be located electronically at www.lawrette.com and any reference thereto

shall include a related mobi site or app;

1.3 In these Terms and Conditions:

1.3.1 any reference to an enactment is to that enactment as at the Effective Date

and as amended or re-enacted from time to time;

1.3.2 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 these Terms and Conditions;

1.3.3 when any number of days is prescribed in these Terms and Conditions,

same shall be reckoned exclusively of the first and inclusively of the last day

unless the last day falls on a Saturday, Sunday or public holiday, in which

case the last day shall be the next succeeding day which is not a Saturday,

Sunday or public holiday;

1.3.4 expressions defined in these Terms and Conditions shall bear the same

meanings in schedules or annexures to these Terms and Conditions which

do not themselves contain their own conflicting definitions;

1.3.5 where any term is defined within the context of any particular clause in

these Terms and Conditions, the term so defined, unless it is clear from the

clause in question that the term so defined has limited application to the

relevant clause, shall bear the meaning ascribed to it for all purposes in

terms of these Terms and Conditions, notwithstanding that that term has not

been defined in this interpretation clause;

1.3.6 the expiration or termination of these Terms and Conditions shall not affect

such of the provisions of these Terms and Conditions as expressly provide

that they will operate after any such expiration or termination or which of

necessity must continue to have effect after such expiration or termination,

notwithstanding that the clauses themselves do not expressly provide for

this;

1.3.7 the rule of construction that a contract shall be interpreted against the Party

responsible for the drafting or preparation of the contract, shall not apply;

1.3.8 any reference in these Terms and Conditions to a Party shall include a

reference to that Party’s assigns expressly permitted under these Terms

and Conditions and, if such Party is liquidated or sequestrated, be

applicable also to and binding upon that Party’s liquidator or trustee, as the

case may be;

1.3.9 the words “include”, “including” and “in particular” shall be construed as

being by way of example or emphasis only and shall not be construed as,

nor shall they take effect as, limiting the generality of any preceding word/s;

1.3.10 the words “other” and “otherwise” shall not be construed eiusdem generis

with any preceding words where a wider construction is possible;

1.3.11 the use of any expression in these Terms and Conditions covering a

process available under South African law such as a winding-up (without

limitation eiusdem generis) shall, if any of the Parties these Terms and

Conditions is subject to the law of any other jurisdiction, be construed as

including any equivalent or analogous proceedings under the law of such

defined jurisdiction.

2 IMPORTANT NOTES

2.1 These Terms and Conditions shall apply to the purchase of Products by the Customer

from LMP and, if applicable, to the rendering of any Services by LMP to the

Customer. These Terms and Conditions shall be incorporated into every Contract,

commence on the Effective Date and subsist until both Parties have performed their

duties of until terminated in accordance with these Terms and Conditions.

2.2 Where a provision in these Terms and Conditions is printed in bold, special effort is

being made to bring such a provision to the attention of the Customer as required by

the CPA, to the extent that the provisions of the CPA may apply to these Terms and

Conditions.

2.3 LMP’s liability in respect of damages is limited which specifically limits the

Customer’s ability to recover losses and/or damages sustained, from LMP in

accordance with clause 9 below.

2.4 Products must be handled correctly failing which it may result in losses and/or

damages being sustained. It is therefore the responsibility of the Customer to

ensure that the Products purchased by it are used for the appropriate purpose

and LMP shall not be held liable and/or accountable for damage suffered as a

result of the inappropriate application and/or incorrect handling of the

Products.

2.5 The Customer will not be entitled to rely on representations not contained in a

Contract. The Customer will not be entitled to rely on representations made to

it in respect of the Products and/or Services unless same is recorded in writing.

2.6 The Customer warrants that the information completed by it and/or provided to

LMP is truthful, complete and accurate in all respects, and is supplied

voluntarily for the purpose of concluding these Terms and Conditions in

connection with the acquisition of Products from and/or rendering of Services

by LMP.

2.7 LMP shall be entitled to rely upon all and/or any of the information supplied in

the Order or an Ad Hoc Order as being completely true and accurate.

2.8 These Terms and Conditions are applicable to (i) transactions falling within the

ambit of the CPA (should the Customer be a juristic person with a turnover or

gross asset value at the date of the transaction of less than R2 000 000 or an

individual), as well as (ii) transactions not falling within the ambit of the CPA

(should the Customer be a juristic person with a turnover or gross asset value

at the date of the transaction of more or equal to R2 000 000). Where the terms

contained in these Terms and Conditions differ between transactions falling

within the ambit of the CPA and transactions not falling within the ambit of the

CPA, it will be indicated as such under the applicable clause.

2.9 The Customer hereby acknowledges that it is aware that the transaction

governed by these Terms and Conditions falls within the ambit of the ECT Act

and as such the Customer is entitled to the protection afforded by the ECT Act

and the Customer by its Acceptance of these terms agrees that it has availed

itself of these protected rights or has dispensed with the need of doing so.

3 CONTRACT

3.1 Upon conclusion of the Contract LMP agrees to sell and the Customer agrees to

purchase the Products stipulated in the Order and Order Confirmation from each

other.

3.2 Subject in all respects to the relevant provisions of the CPA and ECT Act, these

Terms and Conditions (with the applicable Order and/or Ad Hoc Order, Order

Confirmation and Tax Invoice) shall solely govern the relationship between LMP and

the Customer in respect of the sale of the Products and/or Services by LMP to the

Customer.

3.3 The Terms and Conditions shall prevail over any terms and conditions referred to in

any other documentation, unless such other document is a formal written agreement

signed by LMP and the Customer, specifically stipulating that the Parties are

supplementing or amending these Terms and Conditions.

3.4 Each Order and corresponding Acceptance of the Terms and Conditions by the

Customer and Order Confirmation sent by LMP to the Customer shall constitute a

separate Contract between the Parties.

4 ORDER PROCESS

4.1 The Website will prompt the Customer to make its selections and complete vacant

fields necessary in order to complete the Order Process.

4.2 Should the Customer not be able or willing to complete all the mandatory information

(which will include necessary Personal Information) or Accept these Terms and

Conditions, the transaction will automatically be cancelled.

4.3 Upon completion of the Order Process and Acceptance by the Customer of these

Terms and Conditions, LMP will review the Order and proceed to furnish the

Customer with an Order Confirmation if it is able and willing to do so, as all Products

displayed on the Website are subject to availability and some Products are only

produced a limited number of times in order to ensure that the Products retain their

unique nature and value as Artistic Work.

4.4 LMP is entitled to accept, at its own discretion, Ad Hoc Orders for Products and/or

Services and in such circumstances the information contained in any document

reflecting the Customer’s order instructions (whether or not signed by the Customer

and/or LMP) shall serve as prima facie (at first sight) proof of such an Ad Hoc Order

and Customer’s instructions relating thereto.

4.5 LMP shall be entitled to accept or reject any or all Orders for Products and/or

Services placed by the Customer, in its entire discretion.

4.6 The Products purchased in terms of an Order are produced to the Customer’s

specifications as detailed in the Order and as such, the cooling-off period

contained in section 44 of the ECT Act is expressly excluded by section

42(2)(f)(i). There is therefore no cooling-off period and the Customer will not be

able to return the purchased Product(s) for reasons other than that it is a

Defective Product.

5 PRICE

5.1 The price shown on the Website for a Product is exclusive of VAT and any and

all other taxes that may be applicable to the Products and/or Services and any

additional items not forming part of the purchased Products and/or Services,

and any such taxes shall be payable by the Customer at the applicable rates as

indicated on the relevant Tax Invoice as the Purchase Price.

6 PAYMENT

6.1 Orders:

6.1.1 Payment of the Purchase Price for all for all Orders will be made as part of

the Order Process by making use of a Payment Processing Agent and

therefor all payments will be made subject to the terms and conditions of the

said Payment Processing Agent and its Linked Site;

6.1.2 Should the Purchase Price payable in respect of any Order not be

honoured in full or in part, the Contract will be deemed to have been

cancelled.

6.1.3 The Customer by its Acceptance of these Terms and Conditions agree

and unequivocally accept that use of any Linked Site, including any

website operated by a Payment Processing Agent is at the sole and

entire risk of the Customer and that LMP will not be liable for any direct,

indirect or otherwise consequential loss, cost and/or damage incurred

and/or sustained as a result of the Customer making use of the website

operated by the Payment Processing Agent in order to complete the

Order Process. This Clause 6.1.3 must be read in conjunction and

amplification of the indemnifications contained in clause 9.

6.2 Ad Hoc Orders:

Payment for all Ad Hoc Orders will be subject to the following:

6.2.1 Upon receipt of a Tax Invoice from LMP, the Customer shall be obliged to

effect payment of the full Purchaser Price reflected on such a Tax Invoice

within 10 (Ten) Business Days from receipt thereof.

6.2.2 Payment of the full Purchase Price must be made by way of an Electronic

Funds Transfer (“EFT”) into the LMP Bank Account without any deductions or

set-off whatsoever, free of any exchange, commission or bank charges.

6.2.3 Proof of payment of the Purchase Price must be sent to the LMP Email

Address immediately after an EFT has been done.

6.2.4 If the Purchaser Price is not paid in full and/or any part thereof does not

clear in the LMP Bank Account before expiry of the 10 (Ten) Business

Days period referred to in 6.1 the Contract will be deemed to have been

cancelled unless written agreement to the contrary has been reached

between the Parties.

7 PRODUCTION AND DELIVERY

7.1 Production of the Product(s) bought by the Customer in terms of the Contract shall

commence on the Payment Date and will be completed within a reasonable time and

always in accordance with the time limits prescribed in section 46 of the ECT Act.

7.2 Once production of the Product(s) bought by the Customer have been concluded, it

shall be delivered to the Customer at the Delivery Address by an External Supplier

within a reasonable time and always in accordance with the time limits prescribed in

section 46 of the ECT Act.

7.3 Any costs to the Customer in respect of delivery of the Products bought in terms of

the Contract will be clearly stipulated on the Order Confirmation and Tax Invoice.

7.4 Upon delivery of the Products at the Delivery Address the Customer shall be required

to inspect the Products to determine whether they are in good order before signing a

delivery note evidencing:

7.4.1 acceptance thereof in good order; or

7.4.2 acceptance of a Defective Product that will be returned to LMP (in

accordance with clauses 7.6.2 to 7.6.5) and describing as far as

possible the aforesaid damage and/or deficiency in detail, failing which

it will be deemed that the Products were in fact received in good order

by the Customer.

7.5 Clauses 7.5.1 to 7.5.3 will only apply in the event of these Terms and Conditions

being regulated by the CPA:

7.5.1 While LMP will make all reasonable endeavours to meet reasonable

times and dates for production and delivery, any times or dates given

on the Website, on the Order Confirmation and/or elsewhere are best

estimates only and do not constitute contractual obligations.

Accordingly, LMP will not be liable for any loss and/or damages of

whatsoever nature occasioned by delays in deliveries of a Product(s) or

completion of the Contract, save to the extent LMP has acted with gross

negligence;

7.5.2 The Customer is entitled to return Products to the extent permitted by

the CPA and at the risk and cost of the Party as determined in sections

20 and 56 of the CPA. In the instances where Products may be returned

at LMP’s risk and cost the Customer shall be obliged to allow LMP 10

(Ten) Business Days to collect the Products before the Customer

acquires the service of a third party to do so.

7.5.3 If a Contract resulted from direct marketing, the Customer may

terminate the Contract by giving LMP written notice within 5 (Five)

business days after the later of the date on which the Contract was

concluded or the Products were delivered and thereafter return the

Products at the Customer’s expense within 10 (ten) business days after

the Products were delivered. The Customer does not have to give LMP

a reason and there will be no penalty, but LMP may impose a

reasonable charge, as contemplated in the CPA, in respect of the

Products returned.

7.6 Clauses 7.6.1 to 7.6.5 will only apply in the event of these Terms and Conditions not

being regulated by the CPA:

7.6.1 While LMP will make all reasonable endeavours to meet reasonable times

and dates for production and delivery, any times or dates given on the

Website, the Order Confirmation or elsewhere are best estimates only and do

not constitute contractual obligations. Accordingly, LMP will not be liable for

any loss or damages of whatsoever nature occasioned by delays in

production of Products, deliveries or completion of a Contract.

7.6.2 Products ordered and supplied by LMP in good order may not be returned

once same has been delivered to the Customer unless LMP has consented

thereto in writing, and such Products shall be returned to the address

stipulated by LMP in writing and all costs relating thereto shall be for the

Customer’s account. All risk in and to the Products returned (and the liability

to pay the Purchase Price thereof) shall remain vested in the Customer until

LMP has inspected the Products and confirmed in writing that the Products

and its packaging are in LMP’s sole discretion, in a good condition. The

Customer will only be released from payment for the Products returned in

good order once LMP has issued the written confirmation that the Products

and its packaging are in a good condition.

7.6.3 Defective Products may be returned to LMP: Any claim by the Customer

against LMP for Defective Products shall be submitted in writing to the LMP

Email Address within 5 (Five) Business Days of delivery of the Product to the

Customer.

7.6.4 In the event that LMP fails to remove the Defective Products from the

Delivery Address within 5 (Five) Business Days after being requested by the

Customer to do so, the Customer may return the Defective Product at LMP’s

cost.

7.6.5 All risk in and to the Defective Products returned shall pass to LMP once

loading of the Products onto the transport provided by LMP has commenced,

and in the instance where the Customer delivers the defective Products to

LMP, upon delivery thereof to the address specified by LMP to the client in

writing.

7.6.6 LMP shall be entitled to verify claims as to any and all alleged Defective

Product(s) and/or Services and if LMP finds that the Product(s) delivered to

the Customer was in fact not a Defective Product(s) it will be entitled to return

the Product to the Customer at the Customer’s expense and retain the

Purchase Price. Any further dispute will be dealt with as an ordinary legal

dispute failing agreement between the Parties as to an alternate solution.

8 WARRANTIES

8.1 LMP warrants that all Products available on the Website are produced by utilising

original images taken by the Photographer and/or produced from original images by

the Photographer and as such are considered Artistic Work.

8.2 Due to the differences between monitors, computers and the variety of electronic

screens from where the Website can be viewed, as well as the individual specific

settings for contrast and brightness on each device, the Product acquired by the

Customer in terms of any Contract may differ slightly from what was viewed by the

Customer on its chosen device and LMP therefore warrants that:

8.2.1 all Products will be faithful to the density and colour of the Photographer’s

original version;

8.2.2 images of Products shown on the Website are low resolution versions of the

actual high resolution image that will be used to produce a Customer’s

Order.

8.2.3 LMP makes use of External Suppliers that use sophisticated equipment and

colour calibration techniques in the production of each Product bought by a

Customer, but LMP does not warrant that slight, immaterial colour variations

will not occur, as they are a normal occurrence in the production of the

Products.

8.3 Clauses 8.3.1 to 8.3.2 will only apply in the event of these Terms and Conditions

being regulated by the CPA:

8.3.1 LMP does not give any warranty express or implied in respect of the

Products not contained in the Contract, other than those as

contemplated in section 56 of the CPA. The warranties contemplated

by the CPA will be limited in its scope and to the time period as

prescribed by the CPA.

8.3.2 The Customer further confirms that representations not contained in

the Contract or reduced to writing and signed by LMP will not entitle

the Customer to any claim against LMP in respect of such

representations.

8.4 Clause 8.4.1 will only apply in the event of these Terms and Conditions not being

regulated by the CPA:

8.4.1 LMP does not give any warranty express or implied for Products supplied or

in respect of Services rendered and advice furnished except those

contained in these Terms and Conditions. The Customer further confirms

that representations not contained in these Terms and Conditions or

reduced to writing and signed by LMP will not entitle the Customer to any

claim against LMP in respect of such representations.

8.5 In amplification of the above, and for purposes of clarity, LMP endeavours to describe

all Products and/or Services offered as accurately as possible on the Website.

However. LMP does not warrant that descriptions of Products and/or Services or

other content on the Website and/or Linked Site are perfectly accurate, complete,

reliable, current and /or free of error.

8.6 LMP makes no representations or warranties of any nature whatsoever in

relation to the Website and/or Services and/or Linked Sites, implied or otherwise,

including any warranty that the Website or the server that makes the Website

available is free from viruses or other harmful components, or that the functions,

content (including and links to a Linked Site) and technology available from the

Website and/or Linked Site are uninterrupted and/or error free. LMP may suspend

access to the Website without notice at any time and accepts no liability for any

consequences of the Website being unavailable for any reason.

9 INDEMNITY AND LIMITATION OF LIABILITY

9.1 All risk and liability arising from the Customer’s use of the Website (or any

Linked Site) resides with you and neither LMP nor any of its suppliers shall be

liable for any damage, loss or liability of whatsoever nature arising from the use

or inability to use this Website (or any Linked Site) or the Services or content

provided from and through this Website, including any harm to a Customer’s

computer from viruses, or damages suffered due to the Website (or any Linked

Site) being unavailable for any reason.

9.2 To the maximum extent permitted by applicable law, in no event shall LMP and/or its

External Suppliers be liable for any direct, indirect, punitive, incidental, special,

consequential damages or any damages whatsoever including, without limitation,

damages for loss of use, data or profits, arising out of or in any way connected with

the use or performance of the Website, with a delay or inability to use the Website or

related services, the provision of or failure to provide Services, or for any information,

Products and Services obtained through the Website, or otherwise arising out of the

use of the Website.

9.3 The Website may contain links to Linked Sites that are not under the control of LMP

LMP is not responsible for the contents of any Linked Site, including without limitation

the use of any portion of a Linked Site, any link contained in a Linked Site, or any

changes or updates to a Linked Site. Furthermore, LMP is not responsible for

webcasting or any other form of transmission received from any Linked Site. The

inclusion of a link to a Linked Site on the Website is for purposes of Customer

Convenience and does not imply endorsement by LMP of the Linked Site, its contents

operating systems or its owners and/or operators. A Customer’s reliance upon any

information contained in a Linked Site is entirely at its own risk.

9.4 No person, business or website may link to any page on the Website without the prior

written permission of LMP.

9.5 Clauses 9.5.1 and 9.5.2 will only apply in the event of these Terms and

Conditions being regulated by the CPA:

9.5.1 The Customer agrees that LMP shall not under any circumstances

whatsoever, be held liable for damages, direct, indirect, consequential

or otherwise, suffered by the Customer in respect of its purchase,

expectation of delivery or use of any of the Products or pursuant to

Services rendered or advice furnished by LMP, unless LMP acted with

intent or gross negligence, or unless such claim falls within the ambit

of section 55, section 56 or section 61 of the CPA, in which instance

LMP shall be liable to the extent and for the duration prescribed by the

CPA.

9.5.2 The Customer acknowledges that it is its obligation to acquaint itself

with the specifications and characteristics of the Products ordered and

its suitability for the purpose that it intends on using the Products for.

9.6 Clauses 9.6.1 to 9.6.2 will only apply in the event of these Terms and Conditions not

being regulated by the CPA:

9.6.1 The Customer agrees that LMP shall not under any circumstances

whatsoever, be held liable for damages, direct, indirect, consequential or

otherwise, suffered by the Customer in respect of its purchase, expected

delivery or use of Products supplied or pursuant to Services rendered or

advice furnished by LMP.

9.6.2 The Customer hereby indemnifies and holds harmless LMP from and

against any claims of whatsoever nature instituted by third parties in relation

to their use of Products supplied or pursuant to Services rendered or advice

furnished by LMP to the Customer, including but not limited to claims and

liabilities arising from the provisions of the CPA.

9.6.3 The Customer acknowledges that it is its obligation to acquaint itself with the

specifications and characteristics of the Products ordered and its suitability

for the purpose it intends using same.

9.7 Clause 9.7.1 will only apply in the event of these Terms and Conditions being

regulated by the CPA:

9.7.1 Except to the extent that LMP acted with gross negligence or

fraudulent intent, LMP shall not be liable for any loss arising from any

failure or delay in providing Services or Products to the Customer

resulting from circumstances beyond LMP’s reasonable control,

including but not limited to labour disruptions, inclement weather,

diesel shortages, coal shortages, strikes in the transport industry or

power failures.

9.8 Clause 9.8.1will only apply in the event of these Terms and Conditions not being

regulated by the CPA:

9.8.1 LMP shall not be liable for any loss arising from any failure or delay in

providing Services or Products to the Customer resulting from

circumstances beyond LMP’s reasonable control, including but not limited to

labour disruptions, inclement weather, diesel shortages, coal shortages,

strikes in the transport industry or power failures.

10 TITLE AND RISK

10.1 Ownership of and title to the Products shall not pass to the Customer until the

Purchase Price in respect of the Products purchased in terms of a Contract have

been paid in full.

10.2 Save as otherwise agreed between LMP and the Customer and subject to clauses 7.4

and 7.6.2 to 7.6.6, the time at which the risk of damage to or loss of the Products shall

pass to the Customer shall be upon the delivery of the Products to the Customer’s

Delivery Address.

11 INTELLECTUAL PROPERTY AND COPYRIGHT

11.1 LMP retains all intellectual property rights of whatsoever nature in its images,

drawings, specifications, data and all other information and documents in relation to

its Products and Services.

11.2 LMP’s trademarks, logos, images, videos and names shall not be used by the

Customer without the prior written consent of LMP.

11.3 The Products are Artistic Work and, as such, enjoy the protection of the

relevant provisions of the Copyright Act.

11.4 No right or licence is granted in favour of or between the Parties hereto under

these Terms and Conditions in relation to any copyright, registered design,

patent, trademark or other intellectual property right. Any right not specifically

granted in terms of these Terms and Conditions are expressly excluded and

reserved by LMP whether there are any notices on the Website or not.

11.5 Without in any way derogating from the generality of clause 11.3, the Customer

specifically agrees and understands that it shall not (or permit or require any third

party to) copy, reproduce, reverse engineer, modify, alter or tamper with an image,

part of an image, Products and/or part of a Product provided to the Customer. The

Customer by its Acceptance of these terms and Conditions expressly acknowledge

and agree that any and all protection afforded LMP by the Copyright Act are expressly

included as part of these Terms and Conditions.

12 BREACH

12.1 If the Customer (“Defaulting Party”) breaches any provision of these Terms and

Conditions and remains in breach for 14 (fourteen) days after written notice to that

Defaulting Party requiring that Defaulting Party to rectify that breach, LMP

(“Aggrieved Party”) shall be entitled, without prejudice to its right to hold the

Defaulting Party liable for damages or any of its other rights, at its option:

12.1.1 to sue for immediate specific performance of any of the Defaulting

Party’s obligations under these Terms and Conditions, whether or not

such obligation is then due; or

12.1.2 cancel these Terms and Conditions, in which case written notice of the

cancellation shall be given to the Defaulting Party, and the cancellation

shall take effect on the giving of the notice.

12.2 The Aggrieved Party’s remedies in terms of this clause are without prejudice to any

other remedies to which the Aggrieved Party may be entitled in applicable law,

including without limitation, the Aggrieved Party’s rights to claim damages.

12.3 All legal costs incurred by the Aggrieved Party in consequence of any default of

the provisions of these Terms and Conditions by the Defaulting Party shall,

subject to specific limitations in terms thereof, be payable on demand by the

Defaulting Party on the scale as between attorney and own client and shall

include collection charges, the costs incurred by the Aggrieved Party in

endeavouring to enforce such rights prior to the institution of legal proceedings

and the costs incurred in connection with the satisfaction or enforcement of

any judgment awarded in favour of the Aggrieved Party in relation to its rights

in terms of or arising out of these Terms and Conditions.

12.4 All payments received shall be allocated firstly towards legal costs (if

applicable), thereafter interest, and lastly towards the capital amount owing in

respect of the Customer’s outstanding indebtedness.

12.5 No early settlement discounts or any other discounts are given by LMP and the

Customer is not entitled to unilaterally deduct same from any amount due and

payable for the Products supplied and/or Services rendered by LMP.

13 CANCELLATION

13.1 In accordance with the terms of clause 6.2.3, if the Purchase Price payable in respect

of an Order or Ad Hoc Order has not been received timeously, in full or at all, the

Order will be deemed to have been cancelled automatically failing written agreement

between the Parties to the contrary.

13.2 Without prejudice to any other rights of LMP under these Terms and Conditions, LMP

shall be entitled to immediately terminate the Contract and these Terms and

Conditions by written notice in the event that the Customer is placed in liquidation or

under business rescue, whether provisional or final, or has passed a resolution for its

voluntary winding-up (or, in each case, the equivalent or similar nature under the laws

of the jurisdiction in which the Customer is registered or its principal place of

business) or the Customer defaults on payment for the Products and/or Services.

13.3 Upon cancellation of these Terms and Conditions, LMP shall be entitled to elect

whether separate Contracts, entered into between the Customer and LMP will be

cancelled as well.

14 NOTICES AND DOMICILIUM

14.1 Notices

14.1.1 Each Party chooses the addresses set out opposite its name below as its

addresses to which any written notice in connection with this Agreement may

be addressed.

14.1.1.1 LMP:

Physical Address: LMP Physical Address

E-mail Address: LMP Email Address

14.1.1.2 Customer:

Physical Address: Customer Physical Address

E-mail Address: Customer Email Address

14.1.2 Any notice or communication required or permitted to be given in terms of

this Contract shall be valid and effective only if in writing but it shall be

competent to give notice by electronic mail to its e-mail address set out

opposite its name above.

14.1.3 Either Party may by written notice to the other Party change its chosen

physical addresses and/or e-mail address for the purposes of clause 14.1.1

to any other physical address(es) and/or e-mail address, provided that the

change shall become effective on the 14th day after the receipt of the notice

by the addressee.

14.1.4 Any notice given in terms of this Agreement shall:

14.1.4.1 if sent by a courier service, be deemed to have been received

by the addressee on the 7th Business Day following the date of

such sending;

14.1.4.2 if delivered by hand, be deemed to have been received by the

addressee on the date of delivery;

14.1.4.3 if transmitted by electronic mail, be deemed to have been

received by the addressee on the first Business Day after the

date of transmission;

unless the contrary is proved.

14.1.5 Notwithstanding anything to the contrary herein contained, a written notice

or communication actually received by a Party shall be an adequate written

notice or communication to it, notwithstanding that it was not sent to or

delivered at its chosen physical address and/or e-mail address.

14.2 Domicilia

14.2.1 Each of the Parties chooses its physical address referred to in clause 14.1

as its domicilium citandi et executandi at which documents in legal

proceedings in connection with this Conrtact may be served.

14.2.2 Any Party may by written notice to the other Parties change its domicilium

from time to time to another address, not being a post office box or a poste

restante, in South Africa; provided that any such change shall only be

effective on the 14th day after deemed receipt of the notice by the other

Party pursuant to clause 14.1.4.

15 PRIVACY AND SECURITY

15.1 LMP and the Website are subject to various pieces of legislation which specifically

aim to protect the Personal Information of a Customer, including the CPA, the ECT

Act and POPI amongst others.

15.2 LMP collects Personal Information of the Customer in order to perform its obligations

in terms of a Contract and to inform existing Customers of other products or services

on offer or to conduct surveys from time to time. In, addition, LMP also collects

anonymous demographic information, which is not unique to the Customer, such as

its ZIP code, age, gender, preferences, interests and favourites.

15.3 LMP also automatically collects information about the Customer’s computer,

hardware and software, such as its IP address, browser type, domain names, access

times and referring website addresses which is employed to maintain quality of the

service offered on the Website, and to provide general statistics regarding use of the

Website.

15.4 LMP agrees to make all reasonably commercial efforts to protect the Personal

Information of the Customer and hereby confirms that it does not sell, rent or trade

any Customer information to or with third parties other than its External Suppliers and

then only to perform its obligations in terms of the Contract with the Customer.

15.5 LMP will not disclose a Customer’s information without consent unless required by

law to do so.

15.6 “Cookies” are small text files that are stored on a computer by a web browser. They

don’t keep any personal information but they do, for example, keep track of items in a

Customer’s shopping cart. Although the default setting on most computers is to

accept cookies, the Customer does have a choice whether or not to accept cookies.

Without cookies certain functionalities on the Website will be compromised.

15.7 The Customer agrees to the data practices aforementioned by its use of the Website

its voluntary submission of its Personal Information upon completion of the Order and

its Acceptance of these Terms and Conditions.

15.8 LMP endeavours to implement reasonable security measures and safe-guards in

order to secure the Personal Information that you provide but no system is perfect an

LMP cannot guarantee that information may not be accessed if these security

measures are insufficient despite LMP’s best efforts. By using the Website and

Accepting these Terms and Conditions the Customer indemnifies and holds LMP

harmless from any damages sustained as a result of its personal information being

accessed and/or used in any manner not authorised by the Customer.

16 LAW AND JURISDICTION

16.1 The terms of any Order, Ad Hoc Order, Order Confirmation, Tax Invoice and Contract

(including these Terms and Conditions) shall be governed by and construed in

accordance with the laws of South Africa.

16.2 The Customer and LMP agree that the courts of South Africa shall have exclusive

jurisdiction for any action or proceedings commenced under these Terms and

Conditions and any Contract.

16.3 Save where LMP elects to institute action against the Customer in the

Magistrate’s Court (in which case the Parties submit to the exclusive

jurisdiction of the Magistrate’s Court), the Parties hereby submit to the

exclusive jurisdiction of the North Gauteng High Court, Pretoria, in respect of

any claims or disputes arising out of any Contract.

17 ASSIGNMENT

17.1 The Customer shall not cede and/or assign the benefit and/or the burden of any

Contract or these Terms and Conditions, in whole or in part to any third party without

the prior written consent of LMP, which consent may be withheld in LMP’s sole

discretion.

17.2 The Customer may not assign or cede its payment obligations hereunder without the

prior written consent of LMP.

17.3 LMP shall be entitled to cede, delegate and/or assigned, subcontract and/or

outsource any of its rights and/or obligations of LMP in terms of a Contract to External

Suppliers and or other subcontractors without notice to the Customer.

18 GENERAL

18.1 Notwithstanding any express or implied provisions of these Terms and Conditions to

the contrary, no latitude or extension of time which may be allowed by the Parties

hereto in respect of any matter or thing that the Parties are bound to perform or

observe in terms hereof, shall under any circumstances be deemed to be a waiver of

the rights of the Party which grants the said latitude or extension, at any time, and

without notice, to require strict and punctual compliance with each and every

provision or term hereof.

18.2 No addition to or variation, consensual cancellation or novation of the Contract and no

waiver of any right arising from this Contract or its breach or termination shall be of

any force or effect unless reduced to writing and signed by the Parties or their duly

authorised representatives.

18.3 All notices or other communications required or permitted hereunder shall be in

writing and given in the English language and shall be either personally delivered,

transmitted by pre-paid registered mail (airmail if international) transmitted by

facsimile or email to the Parties set forth at the beginning of these Terms and

Conditions.

18.4 Each provision in these Terms and Conditions is severable, the one from the other,

and, if at any time any provision is or becomes or is found to be illegal, invalid,

defective or unenforceable for any reason by any competent court, the remaining

provisions shall be of full force and effect and shall continue to be of full force and

effect.

18.5 These Terms and Conditions replaces any and all pre-existing agreements entered

into between the Parties hereto in respect of the purchasing of Products and/or

performance of Services as from the Effective Date. The Customer confirms that it

has no rights under or claims of any nature whatsoever against LMP under any preexisting

agreements.

18.6 These Terms and Conditions may be varied amended, and/or cancelled at any

time, provided \that the Terms and Conditions published on the Website on the

date of the Order or Ad hoc Order, shall govern the Contract entered into

pursuant to that Order or Ad Hoc Order.