Terms of Sale

MI LIGHTING (PTY) LTD TERMS AND CONDITIONS OF SALE

 DEFINITIONS

"The Company"means MI LIGHTING (PTY) LTD (REG: 2003/007947/07) or any subsidiary or associated Company of MI LIGHTING PTY LTD from which the Goods are ordered including, but not limited, to those listed on Credit Application form.

"The Customer" means the person, firm or other entity which contracts with the Company for the purchase of Goods.

"The Goods"means products of any kind manufactured or sold by the Company

"Contract"means the contract for the purchase and sale of the Goods

“Consumer Protection Act” means the Consumer Protection Act 68 of 2008, and regulations thereunder, as amended from time to time.

“National Credit Act” means the National Credit Act 34 of 2005, and regulations thereunder, as amended from time to time.

 

  1. GENERAL

1.1 These Terms and Conditions govern the sale of Goods by the Company to the exclusion of any other terms and conditions (including any terms or conditions which The Customer purports to apply under any purchase order, confirmation of order, specification or other document) and no variation, modification or substitution for these Terms and Conditions (even though included in or referred to in the document placing or confirming the order as aforesaid) shall be binding on the Company unless specifically accepted by the Company in writing and signed by a Director of the Company.

  1. ORDERS AND SPECIFICATIONS

2.1 The Customer may place an order for goods verbally or in writing, which order shall constitute The Customer’s offer. All verbal orders must be confirmed via e-mail or official order.

2.2 The Customer shall be responsible for ensuring the accuracy of the Terms of any order submitted by it.

2.3 The Company shall be entitled to accept The Customer’s orders in whole or in part.

2.4 Upon acceptance by the Company of The Customer’s order a contract of sale upon the terms set forth in these Conditions shall be deemed to have been concluded between The Customer and the Company in respect of the goods which the Company has agreed to supply.

2.5 Any order form delivered to the Company which reflects The Customer’s name shall be deemed to have emanated from The Customer, and shall be binding on The Customer, notwithstanding that such order may have been given or signed by a person not duly authorised by The Customer.

2.6 Each order that is accepted by the Company shall constitute a separate and distinct contract of sale in respect of the goods forming the subject matter of the order.

2.7 All the illustrations and information concerning dimensions, colour, finish, etc. are for guidance only and are subject to variation due to changes in production processes. While the Company makes every effort to ensure the accuracy of the information contained in its literature, the Company shall not be liable for the consequences of any error or omission in the descriptions, illustrations, dimensions or other information in correspondence, catalogues and any other literature supplied by the Company. However as the Company’s policy is one of continual improvement it reserves the right to alter specifications of any Goods without notice. All descriptions, illustrations, specifications, examples and technical information provided to The Customer by whatever means shall not form part of any contract of purchase and sale with the Company.

2.8 The Company's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract, The Customer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.

2.9 Any advice or recommendation given by the Company or its employees or agents to The Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at The Customer’s own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed

2.10 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by the Company shall be subject to correction without any liability on the part of the Company.

2.11 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order including all applicable

specifications submitted by The Customer for giving the Company any necessary information relating to the Goods within a sufficient time

to enable the Company to perform the Contract in accordance with its terms and for detailing any delivery instructions.

2.12 The quantity, quality, and description of and any specification for the Goods shall be those set out in the Company‘s website, which shall

take priority over the Company’s brochures, save for those instances where the Goods are not on the Company’s website but are in the

Company’s brochures subject to any written variations.

2.13 If the Goods are to be manufactured from specifications supplied to The Customer or the Company uses material to manufacture the

Goods in accordance with a specification submitted by The Customer, The Customer shall indemnify the Company against all loss,

damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company

in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights

of any other person which results from the Company’s use of The Customers’ specification.

2.14 Changes in specification

2.14.1 The Company reserves the right to make any changes to The Customer’s specification of the Goods which are required to conform

to any applicable safety or other statutory requirements.

2.14.2 Where changes are made to The Customer’s specification, the Company shall notify The Customer who shall either provide a new

specification or permit the Company to proceed with the manufacture of the Goods in accordance with the Company’s changes.

Such permission may be provided by The Customer in writing.

2.14.3 Any change to the specification shall be subject to the waiver of warranty.

2.15 No order which has been accepted by the Company may be cancelled by The Customer except with the agreement in writing of the

Company and on terms that The Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the

cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.

3 PRICE

3.1 It is recorded that the price of the goods ordered by The Customer is based on the cost to the Company of materials, labour, delivery

charges, freight, import duty and the relevant rate of exchange.

3.2 The Company reserves the right to vary without notice any price listed or quoted to conform to the Company's price current at the time

of acceptance of any order placed by The Customer. Prices illustrated are per item excluding VAT. The Customer is liable to pay VAT.

3.3 Should The Customer dispute the Company’s right to increase the price of the goods in a particular case, or dispute the amount of any

increases claimed by the Company, then:

3.3.1 The Customer shall give written notice to that effect to the Company within seven (7) days after receipt of notice of the Company’s

intention to increase the price;

3.3.2 If the dispute cannot be resolved between the parties, it shall be referred to the Company’s auditor (acting as an expert and not

as an auditor) for the time being who shall determine the increase in the price of the relevant goods, and whose determination

shall be binding on the parties.

3.3.3 If The Customer does not dispute the Company’s right to increase the price within seven (7) days, or at all, or the amount of the

proposed increase then the increase in price shall be binding upon The Customer.

3.3.4 The foregoing provisions shall not be construed as depriving The Customer of any right it may have in terms of the National Credit

Act should same be applicable, to refer any dispute for alternative dispute resolution in terms of the Act.

4 CARRIAGE AND PACKING

4.1 Carriage to destinations in Johannesburg will be paid by the Company on orders having a net invoice value of R 2,500-00 or more

excluding VAT.

4.2 The Customer shall be liable for the cost of any carriage charges outside of Johannesburg or for orders of less than the amount described

in clause 4.1.

5 PAYMENT

5.1 In respect of each sale of goods the purchase price shall be payable by The Customer to the Company within 30 days after the date of the

Company’s statement reflecting such purchase price. The Company may agree to vary the terms of payment or to offer The Customer a

discount in respect of early payment, such shall only be valid if in writing by the Company.

5.2 If the purchase price is not paid on the due date, The Customer shall be obliged to pay interest thereon at the maximum permissible rate

of interest prescribed in terms of the National Credit Act from time to time, such interest to be reckoned daily and added to the arrear

amount at the end of the month, from the due date to the date of full and final payment.

5.3 All payments shall be made to the Company free of deduction and set-off.

5.4 Upon default by The Customer, a certificate signed by a director of the Company (whose appointment need not be proved) reflecting the

amount owed shall be prima facie proof of the fact therein stated for the purpose of any action, proof of debt on insolvency or liquidation,

or for any purpose where the amount of such claim is required to be established.

5.5 Upon default by The Customer, and without any prejudice to any other rights of the Company, the Company may suspend deliveries under

any or all contracts with The Customer while The Customer is in arrears and/or give notice in writing that if any such sums are not paid

within 14 days any or all contracts may be cancelled and hence if all such sums are not paid within that time, the Company may treat any

or all such Contracts as determined and claim damages for repudiation;

5.6 If The Customer shall fail to make any payment under any Contract with the Company on the due date or shall be in breach of these Terms

and Conditions or any other term of any Contract with the Company or should The Customer:

  1. become insolvent;
  2. Suffer the appointment of an administrator or an administrative receiver over any of its assets;

iii. Go into liquidation whether compulsorily or voluntarily (except for the purposes of reconstruction or amalgamation);

  1. Make any arrangement or composition with its creditors;
  2. become the subject of a bankruptcy order;
  3. Cease, or threaten to cease to carry on business; or should the Company reasonably apprehend that any of the events mentioned

above is about to occur in relation to The Customer and notifies The Customer accordingly then the Company shall have the right

(without prejudice to any other rights and remedies):

  1. to suspend or withhold further deliveries so long as the default continues, and/or;
  2. to serve notice on The Customer that unless all sums due are paid forthwith it will cancel the relevant contract and any

other contract with The Customer and if payment is not made forthwith thereafter the Company may treat the relevant

contract and also at its option any other contract as repudiated and determined and recover damages accordingly,

and/or;

  1. to recover from The Customer any cost or expenses incurred should a third party agency be used in the collection of any

monies due from The Customer and/or;

  1. enter The Customer's premises for the purpose of repossessing the Goods in respect of which title has not yet passed.

5.7 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain

the property of the Company but if The Customer does so, all moneys owing by The Customer to the Company shall (without prejudice to

any other right or remedy of the Company) forthwith become due and payable.

6 EXPORT ORDERS

6.1 Where credit facilities have not been granted, the Company is under no obligation to despatch an export order until The Customer has

provided the Company with a confirmed and irrevocable Letter of Credit, the terms of which are satisfactory to the Company.

7 DELIVERY AND PERFORMANCE

7.1 The Customer shall be bound to accept the Goods when they are ready for delivery by the Company and delivery shall be deemed to

take place when the Goods are delivered to The Customer at the nominated address for delivery or to a nominated carrier as the case

may be. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to The

Customer.

7.2 The Company reserves the right to deliver and/or invoice the Goods in instalments and each delivery shall constitute a separate

Contract, any failure of or any defect in any one delivery shall not vitiate any contract in respect of that or any other delivery.

7.3 Signature by The Customer, or by any person purporting to be an employee or representative of The Customer, of the Company’s

delivery note shall be regarded as acceptance by The Customer that the goods reflected in such delivery note have been properly and

completely delivered.

7.4 Claims by The Customer for shortages in delivery cannot be accepted unless they are received by the Company in writing within 7 days of

the expected date of receipt of the Goods at The Customer’s premises.

7.5 If for any reason The Customer cannot accept delivery of the Goods at the time when the Goods are due and ready for delivery, the

Company may either elect to store the Goods pending their actual delivery and The Customer shall be liable to the Company for the cost

(including insurance) of their so doing (however the Company shall be under no obligation to insure the Goods in storage and the risk of

any loss or damage to the Goods howsoever arising shall be borne by The Customer) or sell the Goods at the best price readily obtainable

and (after deducting all reasonable storage and selling expenses) account to The Customer for the excess over the relevant invoice price

or charge The Customer for any shortfall below the relevant invoice price.

8 EXCLUSIONS

8.1 If the Company fails to deliver the Goods for any reason other than any cause beyond the Company's reasonable control or The Customer's

fault and the Company is accordingly liable to The Customer, the Company’s liability shall be limited to the excess (if any) of the cost to

The Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods. The Company

shall not be liable for loss of profit or other consequential loss. Where any valid claim in respect of any of the Goods which is based on any

defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these

Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or at the Company's sole discretion

refund to The Customer the price of the Goods (or a proportionate part of the price) but the Company shall have no further liability to The

Customer.

8.2 Insofar of delivery of the goods is concerned, time shall not be of the essence of the sale between the Company and The Customer, any

time or date given for delivery or performance is given as an estimate only and the Company shall not be liable for any loss or damage

howsoever arising as a result of failure to deliver or perform at such time or date, nor shall The Customer be entitled to cancel the

contract.

8.3 The Company shall not be liable to The Customer or be deemed to be in breach of the Contract by reason of any delay in performing or

any failure to perform any of the Company’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the

Company's reasonable control.

8.4 In respect of any goods delivered the Company shall not be liable under any circumstances for any loss or damage of any nature

whatsoever whether direct or indirect, consequential or otherwise, sustained as a result of any goods sold being defective or not

conforming to the description thereof, or as a result of any cause whatsoever.

8.5 Subject to the provisions of clause 11, The Customer acknowledges that the Company does not warrant or represent that the goods are

fit for any particular purpose (whether or not that particular purpose is known to the Company) and the goods shall be regarded as having

been sold ‘voetstoets’, and without warranty to any latent defects therein.

8.6 No liability whatsoever shall arise on the part of the Company for any representation or warranty made or alleged to have been made at

any time in respect of the goods sold to The Customer.

8.7 In respect of any goods sold as sub-standard or as reject or as seconds The Customer shall have no claim of any nature whatsoever against

the Company and the Company shall not be liable to The Customer in any way whatsoever for any defect whether latent or patent in such

goods.

8.8 If any goods (other than the goods described in 8.7) are latently or patently or otherwise defective and a claim lies against the Company

in respect of such goods, the Company may at its sole discretion decide in writing to The Customer either to:

8.8.1 Replace the defective goods;

8.8.2 Cancel the sale and reimburse The Customer in respect of the purchase price paid by The Customer for such goods against

return of the goods to The Customer; or

8.8.3 Require The Customer to accept the goods at a reduced price to be agreed provided that if the parties are unable to agree on

the amount of the reduction that question shall be submitted to be resolved by an independent suitably qualified expert, to be

agreed upon by the Company and The Customer and failing such agreement to be determined by clause 14.7.;

8.9 The Company shall not be liable under any circumstances whatsoever for any loss or damage of any nature whatsoever whether direct or

indirect, consequential or otherwise arising out of any contract with The Customer and / or relating to any goods sold to The Customer.

The Customer accordingly indemnifies and holds the Company harmless against any claim that may be brought against the Company in

consequence of any goods being defective and causing damage whatsoever by any cause whatsoever.

8.10 It is the responsibility of the Company to supply the goods to The Customer, the Company shall not be responsible for the installation of

the goods.

8.11 The Company will supply The Customer with an instruction leaflet with details of the correct method for installation. The Company will

not be liable for any loss, whether direct indirect or consequential, arising out of the incorrect installation.

8.12 In the event that there is a fault found in the product the Company must be notified within 7 (seven) days at which point the Company

shall be entitled to inspect the installation of the goods and the goods before the goods are removed from the position where it has been

installed.

8.13 Should the Company not be notified within 7 (seven) days and / or should the Company not be given an opportunity to inspect the goods

as described above, the Company shall have no further obligations to The Customer in respect of the goods, specifically any guarantee of

the parties shall be deemed to be waived.

9 PASSING OF OWNERSHIP AND RISK

9.1 Title to the Goods shall not pass to The Customer until the Company has received in cash or cleared funds payment in full of the invoice

together with any interest and/or delivery charges in addition to payment of all other outstanding sums. Where The Customer is entitled

to sell the Goods as the Company's agent, The Customer shall be obliged to account to the Company immediately thereafter for such of

the proceeds of sale as shall be sufficient to discharge the invoice.

9.2 Where the Goods are in The Customer's possession, The Customer shall keep them separately from all other Goods in its possession in

such a way that they are immediately identifiable as the Company's property. At any time before payment in full of all sums due from The

Customer to the Company, the Company may by notice in writing to The Customer, determine The Customer's right to sell the Goods and

if The Customer is in possession of the Goods The Customer shall thereupon return them to the Company free of charge and shall in any

event cease to be in possession of them with its consent. In placing an order The Customer irrevocably authorises the Company to enter

upon its premises for the purposes of repossessing the Goods in respect of which title has not yet passed to The Customer.

9.3 Risk in the Goods shall pass to The Customer either at the time of delivery, or if The Customer wrongfully fails to take delivery of the

Goods, the time when the Company has tendered delivery of the Goods.

9.4 The Customer shall insure those Goods against all loss or damage to the full purchase price for the period from the date of delivery until

the passing of title in the Goods to The Customer.

9.5 The proceeds of any insurance claim or the right to receive the same shall be held by Customer on trust for the Company and paid to it in

settlement of the outstanding invoice.

10 RETURNS

10.1 Goods will not be accepted back for credit unless written approval has been obtained from the Company.

10.2 A 20% handling charge shall be levied by the Company on all fault free Goods returned at The Customer's request. Any such Goods should

be returned carriage paid and must be in current original undamaged packaging.

10.3 Excluding goods returned under Clause 10.2, the Company reserves the right to return any Goods returned for credit for reasons of fault

where no actual fault has been found with the Goods. The Company will be entitled to levy an additional 10% handling charge and seek

full reimbursement of any carriage or associated costs incurred in returning the goods to The Customer.

10.4 Should the goods be of a specification which is suitable only to The Customer which has ordered the goods and / or should the goods be

of such a specification that the Company will have difficulty in reselling the goods, the Company shall be entitled to charge a handling fee

of 70% of the final cost order including but not limited to shipping, labour and material costs.

10.5 If Goods are returned without the authorisation by the Company in writing, the reimbursement of any carriage charges, if appropriate,

will be limited to the amount that the Company would have incurred had the Company been given the opportunity to arrange their own

collection.

11 GUARANTEE

11.1 The Company can at its entire discretion either replace or repair any of the Goods which within the guarantee period are shown to its

satisfaction to be defective through faulty material or workmanship alone, provided that no attempt has been made by The Customer or

a third party to rectify, dismantle or alter the Goods in any way and the faulty unit is returned to the Company.

11.2 The Guarantee period for any Goods is as specified in the Company's catalogue current at the time of acceptance of The Customer's order

and commences on delivery of the Goods.

11.3 So far as permitted by statute, the Company shall not be liable for loss or damage whether direct or consequential and whether suffered

by or occasioned to The Customer, its employees or agents, or to any third party. For the avoidance of doubt, the Company does not

accept responsibility for any installation costs associated with replacement of a faulty unit.

11.4 The installation of the Goods should only be carried out by a competent person in accordance with the instructions supplied with the

Goods and relevant standards. The Company will not be held responsible for failure of any Goods due to installation in an improper

environment, installation not in accordance with relevant regulations, improper working practice, misuse, negligent storage or accidental

damage. All of the Goods incorporating electronic components are protected against damage which may result from transient voltages

on the mains supply. The level of protection incorporated is generally in excess of the minimum level specified in the current international

standards. It is the installer's responsibility to ensure that electronic equipment is not subjected to transients above the international

immunity standards. The Company does not take responsibility for damage to any Goods caused by excessive mains transients.

 12 SUSPENSION

12.1 Should the Company be delayed in or unable to make delivery owing to any cause whatsoever beyond its control, The Company shall be

free at its entire discretion either to suspend or terminate the Contract without incurring any liability to The Customer for any loss or

consequential damage arising there from.

13 INTELLECTUAL PROPERTY

13.1 All Goods (including codes and names), registered designs, drawings, images, photographs and descriptions may not be reproduced

whatsoever without the prior written consent of the Company.

13.2 Many of the Goods listed in our brochures or shown on our website are the subject of Patents, Patent Applications and/or Registered

Designs in the UK and in South Africa and other countries.

14 GENERAL

14.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that

other party at its registered office or principal place of business or such other address as may at the relevant time have been notified

pursuant to this provision to the party giving the notice

14.2 No waiver by the Company of any breach of the Contract by The Customer shall be considered as a waiver of any subsequent breach of

the same or any other provision

14.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of

the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby

14.4 If any Provisions of the National Credit Act or the Consumer Protection Act are applicable in relation to any transactions between the

Company and The Customer pursuant to these conditions then any provisions of these Conditions which may be rendered unlawful by

any applicable provisions of such Act/s shall be deemed to have been severed from these conditions.

14.5 This contract shall be interpreted according to the Laws of the Republic of South Africa.

14.6 Notwithstanding the amount which may at any time be owing by The Customer the parties hereby consent in terms of section 45 of the

Magistrate’s Court Act No. 32 of 1944 as amended to the jurisdiction of the Magistrate’s Court having jurisdiction for the determination

of any action or proceeding otherwise beyond the jurisdiction of the said Court which may be brought by the Company against The

Customer arising out of any transaction between the parties, it being recorded that the Company shall be entitled, but not obliged, to

bring any action or proceeding in the said Court.

14.7 The Company may, at its sole discretion, elect to refer any dispute to the Arbitration Foundation of South Africa (AFSA) and shall be

determined in accordance with the AFSA Rules.

15 NO OTHER CONDITIONS BINDING

15.1 The Company shall not be bound by any oral statements, recommendations, figures, formulae, specifications, prices quoted, acceptances

or representations unless they are in writing and signed on behalf of the Company by its duly authorised representative.

15.2 All sales of goods by the Company are subject to these conditions and no other conditions shall be binding on the parties notwithstanding

that such conditions may be annexed to, contained in or incorporated by reference, in any documents exchanged between the Company

and The Customer and purport to regulate the terms of any purchase by The Customer.

15.3 No variation of these Conditions shall be binding on the Company unless in writing and signed by a duly authorised representative of the

Company.