All orders are accepted and delivered under these Terms and Conditions for LightWare Optoelectronics (Pty) Ltd and all it's subsidiaries, jointly referred to as "LightWare" The following Conditions of Sale set out below apply:
All orders for products and services are accepted by LightWare subject to these terms and conditions of sale. No other terms will apply to the supply of products or services by LightWare unless agreed in writing by an authorised signatory of LightWare. Each time the Customer places an order, it will be deemed to have accepted the terms and conditions of sale.
All descriptions of the products and services contained in this website, written documentation or otherwise communicated to the Customer are approximate only and shall not form any part of the contract between LightWare and the Customer. LightWare Ltd shall not be liable to the Customer for any errors or omissions in its information.
LightWare reserve the right to modify the Terms and Conditions of Sale at our sole discretion, at any time and without notice. The use of the website after such modifications implies full acceptance of the Terms and Conditions of sale in their amended version. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
The prices of the products and services are as set out on this Website at the date of submission of the Customer's order. LightWare reserves the right to change prices without prior notice at any time.
LightWare reserves the right to decline to trade with any person. In addition, LightWare may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the Customer by email. Orders are deemed to have been accepted by LightWare unless LightWare declines such order within 30 days of receipt.
To the extent that orders cannot be fulfilled completely from stock, the unfulfilled order will automatically be put on back order to be fulfilled when LightWare next has available stock.
Backorder delivery dates will be communicated to the Customer and LightWare will endeavour to deliver orders on time. However LightWare shall not be liable for any losses, consequential or otherwise, or for costs (including legal costs), expenses, liabilities, injuries, loss of profits, business or economic loss, depletion of goodwill, damages, claims, demands, proceedings, judgments or otherwise arising from any delivery delays.
If the Customer orders the wrong product or number of products, or duplicates orders, the provisions of clause 13 will apply.
4. Restrictions on Trade
LightWare will not sell to comprehensively embargoed countries, either directly or through a third party. If it comes to LightWare’s attention that goods are bound for such countries, LightWare will decline the transaction.
The following countries fall under this category at this time:
• Crimea Region of Ukraine
• North Korea
This list must be updated from time to time.
LightWare does not develop products for use in armament or munitions applications. We do not support or sell to customers in the military or peace-keeping markets with the intent to use our products on weapons of any kind.
We will however support and sell to military and peace-keeping customers with the intent to deploy our solutions within surveillance, reconnaissance, search and rescue applications or any other applications that are not aimed at weaponizing our products.
For all customers in the military and peace-keeping markets, LightWare will request the completion of an End User Declaration stipulating the intended purpose of the application.
Only once the completed End User Declaration has been received and approved by a LightWare Officer will any sales or technical support be allowed.
Delivery will be on DAP Incoterms (Delivered at Place) and will be quoted using a LightWare contracted courier for all exported orders. DAP means the Customer is responsible for customs and clearing charges in the import country.
The Customer is responsible for dealing with any import restrictions or applying for any import licenses ahead of the order dispatch. Please consult with your clearing agent regarding HTS code: 9015.10.40.00.
LightWare will aim to deliver products in accordance with the Customer's order. The Customer's delivery options, and the prices for them, are set out on the Website. Delivery will be made to the Customer's address specified in clause 22, unless otherwise agreed in writing between the parties.
On shipment the Customer will be notified of the tracking details to assist with tracking and clearing.
LightWare cannot assist with requests for a lower declared value to reduce customs duties. All exports must legally be declared at their commercial values.
The signature of any agent, contractor, sub-contractor or employee of the Customer on the official delivery note, invoice or waybill or that of any authorised independent carrier will constitute prima facie evidence of delivery of the products reflected thereon.
6. Transit delays and non-delivery
Times and dates for delivery quoted on the Website are approximate only and dependent on third party courier services and customs clearance processes. LightWare shall not be liable for any delay in delivery. If any delivery is late, the Customer must notify LightWare, and LightWare will endeavour to assist the Customer.
In cases of non-delivery or lost courier parcels LightWare will endeavour to send replacement products as soon as possible.
Payment terms are advance on placement of orders. Payment options are as per the Website and might change from time to time. All payments must be made without any set-off, deduction or counterclaim.
8. Passing of risk and property
Risk of loss of or damage to the products shall pass to the Customer at the time that the goods are signed for by any agent, contractor, sub-contractor or employee of the Customer on the official delivery note, invoice or waybill or that of any authorised independent carrier, i.e. when delivery is made.
9. Product and availability information
LightWare reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous programme of product improvement, and such changes may take place at any time.
10. Warranty statement and product repairs
LightWare offers a 12-month limited warranty on its products. This warranty period commences on the date of purchase of the product and not the date of use or installation. The Customer may be required to provide proof of the purchase date.
This limited warranty covers any defects in material or workmanship under normal use during the warranty period.
LightWare will repair or replace, at its own discretion and at no charge, products or parts of products that prove to be defective due to material or workmanship, under normal use and maintenance.
The warranty will be void if the product is not used as prescribed, installed as prescribed or if it is altered in any way.
The warranty excludes wear and tear components, such as, but not limited to, motors and bearings, which has a limited MTBF depending on usage.
The warranty excludes any damage caused through use, such as, but not limited to, over voltage, water damage, and exposure to temperatures outside of the specifications.
Warranty repairs will be warranted for the remaining period of the original warranty period or 3 months, whichever is the longer period.
All other repair work is warranted free of faulty material or workmanship for a period of 3 months from the date of repair.
Before any products are returned to LightWare for repair, the Customer must obtain an RMA (Return Merchandise Authorization) number from LightWare.
Products returned to LightWare for repair are at the Customer's cost and the Customer's risk. LightWare accepts no responsibility for any loss of or damage to products in transit from Customer to LightWare.
In case LightWare determines the repair to be a warranty repair then LightWare will return the products to the Customer on LightWare’s cost.
Costs for return of non-warranty repairs and no fault found (NFF) products will be at the cost of the Customer.
11. Limitations of use
Products sold by LightWare are not recommended or authorised for use in life support, surgical implantation, nuclear or certified aircraft applications or for any use or application in which the failure of a single component could cause substantial harm to persons or property.
12. Limitations and exclusions of liability
LightWare shall not be liable for damage, losses (whether direct, indirect or consequential), expenses, liabilities, injuries, loss of profits, business or economic loss, depletion of goodwill, costs (including legal costs), claims, demands, proceedings, judgments or otherwise resulting from the failure to give advice or information or the giving of incorrect advice or information whether or not due to its negligence or that of its employees, agents or sub-contractors.
LightWare Ltd shall not be liable for economic loss, loss of revenue, loss of profits or expected future business, damage to reputation or goodwill, loss of any order or contract or any consequential or indirect loss or damage, all as may result from, or be connected with: (i) any express or implied terms of the contract between LightWare and the Customer, or of any order accepted by LightWare; (ii) any duty of any kind imposed on LightWare by law arising out of or in relation to the contract between LightWare and the Customer or order; (iii) any defect in the products or services; (iv) intellectual property rights infringement; or (v) any other loss whatsoever arising out of these terms and conditions of sale.
If, notwithstanding any other provisions in these terms and conditions of sale including without limitation clauses 10, 11 and 12, any liability attaches to LightWare, liability to the Customer arising out of or in connection with these terms and conditions of sale or any order whether in contract, delict or otherwise in respect of one or more of (i) any express or implied terms of the contract between LightWare and the Customer, or of any order accepted by LightWare; (ii) any duty of any kind imposed on LightWare by law arising out of or in relation to the contract between LightWare and the Customer or the order; (iii) any defect in the products or services; (iv) intellectual property rights infringement; or (v) any other loss whatsoever arising out of these terms and conditions of sale shall be limited in the aggregate to USD1,000 or the total value of the order, whichever is greater.
13. Cancellations and returns
The Customer may not cancel orders once accepted by LightWare. LightWare may, at its discretion and in writing, allow an order to be cancelled subject to LightWare recovering from the Customer the costs incurred by LightWare. In the event of cancellation of part of any order only, LightWare may invoice the Customer any difference in selling price per unit applicable to the quantity actually despatched up to the time of cancellation compared to the quantity ordered.
The Customer may not return orders to LightWare for credit or refund. LightWare may, at its discretion and in writing, allow a return for credit or refund.
Products returned to LightWare are at the Customer's cost and the Customer's risk. LightWare accepts no responsibility for any loss of or damage to products in transit from Customer to LightWare.
14. Calibration services
The products shall be tested for compliance with the published specification at appropriate points, using working standards, which are periodically verified. Periodic recalibration is not required.
15. Force majeure
A force majeure event is any event beyond the reasonable control of LightWare (including strikes, traffic congestion, the downtime of any external line, or LightWare's inability to procure services, materials or articles required for the performance of the contract). If LightWare is prevented or restricted from carrying out all or any of its obligations under these terms and conditions of sale by reason of any force majeure event, then LightWare shall be relieved of its obligations during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure event continues for a period longer than thirty days, LightWare may cancel the affected order or cancel the whole or any part of these terms and conditions of sale, without any liability to the Customer.
16. Compliance with laws, instructions and warnings
The Customer must, at all times:
(i) comply with all relevant laws, regulations and standards relating to the products, including but not limited to the loading, storage, stacking, handling and use thereof;
(ii) comply with the instructions provided by LightWare in relation to the products and the handling and use thereof;
(iii) take proper notice of the warnings provided by LightWare in relation to any hazards associated, especially laser hazards, with the products or the handling or use thereof;
(iv) to the extent applicable, communicate the items listed in (i) to (iii) above to all persons to whom the Customer supplies the goods; and
(v) ensure that the persons referred to in (iv) above undertake to communicate the items listed in (i) to (iii) above to all persons to whom they supply the goods, and so on down the supply chain until the goods reach the end user.
The Customer shall not knowingly sell to any buyer who is on, or who will supply the products to any other person who is on, the US Denials List or any other embargoes or sanctions list.
If the Customer exports the products:
(i) the Customer shall comply with all applicable export controls and shall comply with any applicable LightWare policy in force from time to time (if there is any conflict between the two, the export controls shall prevail); and
(ii) it is the Customer's sole responsibility to ensure that it complies with all laws and regulations applicable to exports.
As far as the law allows, the Customer hereby indemnifies LightWare Ltd against all actions, claims, costs, demands and expenses incurred or suffered by LightWare arising out of the breach by the Customer of this clause 16.
17. Business rescue
If the Customer is a company, it must notify LightWare in writing within 2 days of the occurrence of the following events:
(i) when its board of directors becomes aware that the Customer is Financially Distressed;
(ii) when its board of directors contemplates, considers, discusses or agrees to the Business Rescue of the Customer proposes to do any of the things referred to in this clause 17; or
(iii) when it becomes aware of any person proposing to take, or taking, any step to apply to court for the Business Rescue of the Customer.
The written notice must set out the full details of the Financial Distress or the actual or proposed activity contemplated in (ii) and/or (iii) above, as the case may be.
'Business Rescue' bears the meaning assigned to it in section 128(1)(b) of the Companies Act, 71 of 2008, and 'Financially Distressed' bears the meaning assigned to it in section 128(1)(f) of that Act.
If the Customer breaches any obligation owed by it to LightWare whether under these terms and conditions of sale or otherwise and fails to remedy such breach within 7 days of receipt of written notice from LightWare requiring it to do so, LightWare shall be entitled, without prejudice to any other remedies to which it may in law be entitled, to:
(i) suspend performance of any obligation owed by it and to claim any additional costs and expenses incurred by it as a result thereof;
(ii) cancel the contract; and/or
(iii) to retain, as a penalty, all amounts paid by the Customer or alternatively to claim such damages as it may have suffered.
The Customer shall be liable to pay all expenses and legal costs, including attorney and client costs and collection commission, which LightWare may incur in taking any steps pursuant to any breach of these terms and conditions of sale by the Customer.
In addition to any and all other legal remedies available to LightWare in law, LightWare may immediately cancel this contract or any other contract between the parties with no notice to the Customer if the Customer:
(i) delivers a written notice referred to in (i) of clause 17 to LightWare;
(ii) becomes Financially Distressed, or any person undertakes or proposes any activity contemplated in (ii) or (iii) of clause 18;
(iii) is liquidated (provisionally or finally, voluntarily or compulsorily);
(iv) effects a general compromise or any other arrangement with its creditors; and/or
(v) suffers any judgment to be granted against it and fails to meet the judgment, or take steps to set it aside or rescind it, within 30 days of it being granted.
19. Intellectual property rights
The Customer acknowledges that LightWare is the owner or licensor of the intellectual property rights in its website and data sheets and that reproduction in part or whole is prohibited without written consent from an authorized representative of LightWare.
20. Data protection and customer information
LightWare may keep and use personal details of the Customer and its employees for the purposes of providing products and services to the Customer. In addition LightWare may disclose the Customer's and its employees' details to organisations working on behalf of LightWare anywhere in the world (for example, credit reference agencies, mailing houses and call centres) for the purpose of proper fulfilment of LightWare's obligations under these terms and conditions of sale.
21. Law and jurisdiction
The contract between LightWare and the Customer based on these terms and conditions of sale as applicable to each Customer order shall be governed by and interpreted in accordance with the laws of the Republic of South Africa and the Customer submits to the non-exclusive jurisdiction of the South Gauteng High Court, Johannesburg.
LightWare nominates the following address as its domicilium citandi et executandi for the service upon it of all process, and the following physical address and e-mail address for the service upon it of all notices, in connection with these terms and conditions of sale:
Address: 2741 Mapleton Avenue, Boulder, Colorado 80304, United States of America
Tel: +1 415 315 9432
The notice shall be deemed to have been duly given:
(i) on delivery to LightWare's physical address between 08h00 and 16h00 on a Business Day;
(ii) on despatch, if sent to LightWare's e-mail address between 08h00 and 16h00 on a Business Day (or on the first Business Day after that if despatched outside such hours);
unless the addressor is aware, at the time the notice would otherwise be deemed to have been given, that the notice is unlikely to have been received by the addressee through no act or omission of the addressee.
Each provision of these terms and conditions of sale, and each part of any such provision, is separate and severable from the others. To the extent that any provision in these terms and conditions of sale, or any part of such provision ('Severed Provision or Part') is, becomes or is declared by a court of competent jurisdiction or other competent authority to be unlawful, invalid or unenforceable for any reason or in any jurisdiction, then it will, to the extent that it is unlawful, invalid or unenforceable, be severed from these terms and conditions of sale and treated as if it had not been written (i.e. pro non scripto), without invalidating or affecting the enforceability of the remainder of such provision or the remainder of these terms and conditions of sale.
The use of any expression covering a process available under South African law shall, if the Customer is subject to the law of any other jurisdiction, be interpreted in relation to the Customer as including any equivalent or analogous proceeding under the law of such other jurisdiction.
The rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (i.e. the eiusdem generis rule) shall not apply, and whenever the word "including" is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.
No contract varying, adding to, deleting from or cancelling these terms and conditions of sale, and no waiver of any right under these terms and conditions of sale, shall be effective unless reduced to writing and signed by or on behalf of the parties.
The grant of any indulgence, extension of time or relaxation of any provision by a party under these terms and conditions of sale shall not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor.
A party may not cede any or all of that party's rights or delegate any or all of that party's obligations under these terms and conditions of sale without the prior written consent of the other party.
These terms and conditions of sale are governed and interpreted in accordance with the laws of the Republic of South Africa and for this purpose the parties consent to the non-exclusive jurisdiction of the South Gauteng High Court, Johannesburg.
24. Consumer Protection Act
If these terms and conditions of sale, and/or any products and/or services provided under these terms and conditions of sale, is regulated by the Consumer Protection Act, 68 of 2008, as amended, it is not intended that any provision of these terms and conditions of sale contravenes any provision of that Act. Therefore, all provisions of these terms and conditions of sale must be treated as being qualified, to the extent necessary, to ensure compliance with the provisions of that Act.