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.