This Agreement is made between LightWare and the Customer in connection with the parties’ commercial relationship. Accordingly, LightWare and the Customer hereby agree that the following terms and conditions shall apply for and govern any Transaction by, with and for LightWare:
1. Definitions
In this Agreement, the following words shall have the meanings ascribed to them here:
1.1 “Affiliate” means, with respect to either party, any entity that directly or indirectly controls, is controlled by or is under common control with that party and, in the case of LightWare, specifically includes LightWare LiDAR Inc.
1.2 “Agreement” means the terms and conditions set out in here.
1.3 “Business Rescue” means the definition thereof in Chapter 7 or Chapter 11 of the United States Bankruptcy Code, or section 128(1)(b) of the South African Companies Act, 71 of 2008, or any act of similar nature in the country or territory where the Customer operates.
1.4 “Confidential Information” means, in relation to either party, all of that party’s non-public information disclosed by the Disclosing Party to the Receiving Party and includes, without limitation:
1.4.1 non-public information relating to the Disclosing Party’s technology, software, products, services, processes, data, customers, business plans and methods, product roadmap, promotional and marketing activities, finances, commercial agreements, pricing, discounts, quotations, tenders and other business affairs and secrets;
1.4.2 personal information as defined in terms of applicable privacy laws of a country;
1.4.3 all information, documentation, materials or ideas belonging to such party in whatever form and embodied in whatever media, whether subject to or protected by common law or statutory laws relating to copyright, patent, trademark (registered or unregistered) or otherwise
1.4.4 third-party information that the Disclosing Party is obligated to keep confidential; and
1.4.5 the nature, content and existence of a relationship, discussions or negotiations between the parties.
1.5 “Disclosing Party” means the Party disclosing its Confidential Information, its Affiliates, or their agents (as applicable), to the Receiving Party.
1.6 “Customer” means the entity that wishes to engage in a commercial engagement with LightWare for the purpose of procuring products, services or information from LightWare.
1.7 “Embargoed entity” means any comprehensively embargoed country, or “Specially Designated Nationals” (SDN) as defined by OFAC (The Office of Foreign Assets Control) and as amended from time to time.
1.8 “Financially Distressed” means the definition thereof in Chapter 7 or Chapter 11 of the United States Bankruptcy Code, or section 128(1)(f) of the South African Companies Act, 71 of 2008, or any act of similar nature in the country or territory where the Customer operates.
1.9 “Force Majeure event” means any circumstance which is beyond the reasonable control of any Party, for which it is not responsible; and is not a circumstance which the Party could, by the implementation of a standard of care and skill which could reasonably be expected of the Party, have avoided. This includes war (whether declared or not), revolution, invasion, insurrection, riot, civil commotion, mob violence, sabotage, blockade, embargo, boycott, the exercise of military or usurped power, fire, explosion, theft, storm, flood, drought, wind, lightning or other adverse weather condition, epidemic, pandemic, quarantine accident, breakdown of machinery or facilities, strike, lockout or labour dispute, acts or restraints of government imposition, or restrictions of or embargoes on imports or exports.
1.10 “LightWare” means LightWare Optoelectronics (Pty) Ltd and all its Affiliates.
1.11 “Permitted Use Transactions “ means Transactions with military and peace-keeping Customers, or resellers intending to deploy LightWare solutions within surveillance, reconnaissance, search and rescue applications or any other applications that fall outside of the Prohibited Use Transactions.
1.12 “Personnel” includes the directors, officers, employees, contractors, agents, legal and accounting advisers, and entities controlled by the Party.
1.13 “Prohibited Use Transactions” means Transactions with military Customers, or resellers with the intention to use LightWare products on loitering munitions, self-guided ballistic missiles or ballistic missiles of any kind.
1.14 “Receiving Party” means the Party receiving any information, its Affiliates, or their agents (as applicable), regarding the Disclosing Party.
1.15 “Statutory charges” means Value Added Tax, General Sales Tax, any other rates, taxes, duties, import tariffs, charges or imposts which may be applicable to a Transaction.
1.16 “Terms” means the entirety of the terms and conditions set out in this Agreement.
1.17 “Transaction” means any commercial engagement between LightWare and the Customer, including, but not limited to quotes, proposals, tender response, product information exchange, sales orders, payments, deliveries, credit notes, technical support and/or material returns.
1.18 “Website” means https://www.lightwarelidar.com.
2. Commencement and term
2.1 This Agreement commences on the first Transaction between LightWare and the Customer, and, by entering into the Transaction with LightWare, the Customer accepts these Terms, as amended from time to time, for each Transaction.
2.2 All Transactions between LightWare and the Customer are subject to these Terms.
2.3 No other terms will apply to any Transaction unless agreed in writing by an authorized signatory of LightWare.
2.4 This Agreement will terminate at a date three (3) years after the date of the last Transaction, except clauses 6, 11, 12, 15, and 16 which survive indefinitely.
3. Pricing and Payment
3.1 LightWare reserves the right to change the pricing of any product or service at any time without prior notice.
3.2 The pricing for the products and services as set out on the Website at the date of submission of the Customer’s order via the Website will be fixed for that order.
3.3 All quoted Transaction pricing is exclusive of any Statutory charges (e.g. VAT, GST, etc.) thereon.
3.4 At LightWare’s discretion, LightWare shall be entitled to add any Statutory charges at the prescribed rate to the value of any Transaction.
3.5 Payment terms for all orders are payment in advance.
3.6 Payment options are described on the Website and quotations, and may change from time to time.
3.7 Only payments made without any set-off, costs, deductions or counterclaim will be accepted as valid payment of an order.
3.8 Should the Customer exceed any indicated timeline in a call-off order, the pricing for the components in any delayed order may be adjusted to the then-current pricing and may exclude any discounts passed on the initial order.
3.9 LightWare reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous program of product improvement, and such changes may take place at any time.
4. Ordering
4.1 LightWare reserves the right to decline a Transaction or interaction with any person, company, business, entity or Government. 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 only accepted by LightWare through written order confirmations and no orders will be deemed to be accepted without such written confirmation.
4.2 Unless otherwise indicated on the quotation, quotations provided by LightWare are valid for a period of 30 days from the quotation date.
4.3 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.
4.4 All stock quantities and backorder lead times stated are indicative only.
4.5 Backorder delivery dates will be communicated to the Customer and LightWare will endeavor to deliver orders on time. Further to clause 11, LightWare shall not be liable for any claims arising from any delivery delays.
4.6 Any errors in orders, including incorrect products, quantities or duplicate orders are subject to the provisions of clause 5.
4.7 Any purchase order terms provided by the Customer are invalid and hereby rejected. Acceptance of any Transaction by LightWare shall not constitute acceptance of such terms provided on a purchase order from the Customer and/or any other communication medium from the Customer to LightWare.
5. Cancellations and returns
5.1 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 dispatched up to the time of cancellation compared to the quantity ordered.
5.2 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, in which limited cases the LightWare RMA process must be followed.
5.3 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.
6. Limitations of use
6.1 Products sold by LightWare are not recommended or authorized 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.
6.2 LightWare may decline any Transaction with Embargoed entities, either directly or through a third party.
6.3 The Customer agrees not to resell LightWare products to Embargoed entities, either directly or through a third party, nor to any entity that may use the LightWare products for Prohibited Use Transactions.
6.4 Should LightWare become aware of any Transaction, or goods that are bound for an Embargoed entity, LightWare may decline the Transaction.
6.5 LightWare will only enter into Permitted Use Transactions. Prohibited Use Transactions will explicitly be rejected.
6.6 Prior to the completion of any Transaction, LightWare may request the completion of a Customer Undertaking and Warranty document for customers in military and peace-keeping markets, or resellers intending to sell into these markets. LightWare may refrain from proceeding with any Transaction until a duly signed Customer Undertaking and Warranty has been received and approved by LightWare.
7. Delivery
7.1 Delivery will be on DAP Incoterms (Delivered at Place) and will be quoted using a LightWare contracted courier for all exported orders. Furter to 7.2, the Customer agrees to promptly pay for any customs and clearing charges in the import country.
7.2 The Customer expressly accepts responsibility for paying any Statutory charges imposed by any country that will be payable on importation and will not withhold any payment to LightWare as a result of the non-delivery of an order pending the payment of any additional charges.
7.3 It is the sole responsibility of the Customer to apply for, and obtain any import licenses and/or permits prior to the commencement of the shipping of the order.
7.4 The Customer confirms that no trade restrictions apply to the Transaction, that they have the right to enter into the Transaction and the Customer will retain full responsibility to liaise with any governmental authority in terms of the Transaction.
7.5 LightWare will aim to deliver products in accordance with the Customer’s order.
7.6 For website orders, the Customer’s delivery options and their associated costs are detailed during the checkout or quotations process.
7.7 Delivery will be made to the Customer’s address specified on the order, unless otherwise agreed in writing between the parties.
7.8 LightWare may notify the Customer on shipment of the order of the tracking details to assist with tracking and clearing.
7.9 LightWare cannot assist with requests for a lower declared value to reduce customs duties. All exports must legally be declared at their commercial values.
7.10 The signature of any of the Customer’s Personnel on the official delivery note, invoice or waybill or that of any authorized independent carrier will constitute prima facie evidence of delivery of the products reflected thereon.
7.11 All delivery times and dates quoted are approximate only and dependent on third party courier services and customs clearance processes. LightWare shall not be liable for any delay in delivery. Should the delivery not take place on the initially indicated date, the Customer may notify LightWare to endeavor to assist the Customer.
7.12 In the event of non-delivery or lost courier parcels, LightWare will make every effort to dispatch replacement products as soon as possible, subject to product availability.
7.13 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 of the Customer’s Personnel on the official delivery note, invoice or waybill or that of any authorized independent carrier, i.e. when delivery is made.
8. Warranty statement and product repairs
8.1 LightWare offers a 24-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.
8.2 This limited warranty covers any defects in material or workmanship under normal use during the warranty period.
8.3 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.
8.4 LightWare products are tested for compliance with the specifications published in the applicable product guides, at appropriate points, using working standards. These testing procedures are periodically verified.
8.5 Recalibration of the LightWare products is not required.
8.6 The warranty will be void if the product is not used as prescribed, installed as prescribed or if it is altered in any way. LightWare products contain no user serviceable parts and should not be opened or disassembled as this will void the warranty.
8.7 The warranty excludes wear and tear components, such as, but not limited to, motors and bearings, which has a limited mean time between failure, depending on usage.
8.8 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.
8.9 Warranty repairs will be warranted for the remaining period of the original warranty period or 3 months, whichever is the longer period.
8.10 All other repair work is warranted free of faulty material or workmanship for a period of 3 months from the date of repair.
8.11 Before any products are returned to LightWare for repair, the Customer must obtain an RMA (Return Merchandise Authorization) number and return instructions from LightWare.
8.12 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.
8.13 Where LightWare determines the repair to be a warranty repair LightWare will return the products to the Customer on LightWare’s cost.
8.14 Costs for return of non-warranty repairs and no fault found (NFF) products will be at the cost of the Customer.
9. Customer responsibility for software and firmware updates
9.1 LightWare will release software and firmware updates from time to time to improve the performance of the software platforms or LiDAR sensors. These updates may include bug fixes, new features, enhancements to the performance of the sensors or critical updates to ensure the safe and reliable operation of your LiDAR sensor.
9.2 From time to time, LightWare may communicate these updates to the Customer via email, website posting and / or notice on LightWare Studio. It is the Customer’s sole responsibility to ensure their software and firmware are kept up to date. Further to clause 11, LightWare shall not be liable for any claim arising from operating the sensors with outdated firmware or using outdated software.
10. Support for obsolete products and older hardware revisions
10.1 LightWare will provide support for obsolete products and older hardware revisions for up to 36 months following the end-of-sale date. This support includes technical assistance and compatibility with LightWare Studio.
10.2 While LightWare cannot guarantee compatibility with third-party software such as autopilots and similar systems, the company may review compatibility for up to 36 months following the end-of-sale date sale. This is subject to the availability of test units and the cooperation of third-party vendors.
11. Limitations and exclusions of liability
11.1 LightWare shall not be liable for direct, indirect or consequential damages, losses, expenses, liabilities, injuries, loss of profits or expected future business, business or economic loss, depletion of goodwill, costs (including legal costs), claims, demands, proceedings, judgments or otherwise resulting from:
11.1.1 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 Personnel;
11.1.2 any express or implied terms of any Transaction between LightWare and the Customer;
11.1.3 any duty of any kind imposed on LightWare by law arising out of or in relation to any Transaction;
11.1.4 any defect in the products or services;
11.1.5 intellectual property rights infringement; or
11.1.6 any other claim whatsoever arising out of these Terms.
11.2 If, notwithstanding any other provisions in these Terms including without limitation clauses 8, 9, and 10, any liability attaches to LightWare, liability to the Customer arising out of or in connection with these Terms or any Transaction whether in contract, delict or otherwise in respect of one or more of (i) any express or implied terms of any Agreement between LightWare and the Customer, or of any Transaction accepted by LightWare; (ii) any duty of any kind imposed on LightWare by law arising out of or in relation to any Agreement between LightWare and the Customer or the Transaction; (iii) any defect in the products or services; (iv) intellectual property rights infringement; or (v) any other loss whatsoever arising out of these Terms shall be limited in the aggregate to USD1,000 or the total value of the last order, whichever is the lesser.
11.3 As far as the law allows, and to the fullest extent possible, the Customer indemnifies LightWare against all actions, claims, costs, demands and expenses incurred or suffered by LightWare arising out of the breach by the Customer of clauses 6 and 12.
12. Compliance with laws, instructions and warnings
12.1 The Customer agrees to at all times:
12.1.1 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;
12.1.2 comply with the instructions provided by LightWare in relation to the products and the handling and use thereof;
12.1.3 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;
12.1.4 to the extent applicable, communicate the items listed in this clause 12 to all persons to whom the Customer supplies the goods; and
12.1.5 ensure that said persons undertake to communicate the said items to all further persons to whom they onward supply the goods, and so on down the supply chain until the goods reach the end user.
12.2 If the Customer exports the products:
12.2.1 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
12.2.2 it is the Customer’s sole responsibility to ensure that it complies with all laws and regulations applicable to exports.
13. Force majeure
13.1 If LightWare is prevented or restricted from carrying out all or any of its obligations under this Agreement by reason of any Force Majeure Event, 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.
13.2 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, without any liability to the Customer.
13.3 The Customer is not entitled to recover any damages that it may suffer because of any Force Majeure Event.
14. Business rescue
14.1 If the Customer is a company, it must notify LightWare in writing within 2 days of the occurrence of the following events:
14.1.1 when its board of directors becomes aware that the Customer is Financially Distressed;
14.1.2 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; or
14.1.3 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.
14.1.4 The written notice must set out the full details of the Financial Distress or the actual or proposed activity contemplated above, as the case may be.
15. Non-disclosure and Confidentiality
15.1 The Receiving Party agrees not to disclose, use, or exploit any Confidential Information received from the Disclosing party, except as necessary for the agreement’s purposes or as expressly permitted by this Agreement and will use Confidential Information only in connection with the Transaction between the Parties.
15.2 Except as provided in this Agreement, the Receiving Party will not disclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party will take reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information.
15.3 The Receiving Party will take all the necessary steps to prevent unauthorized third-party access to confidential information.
15.4 Confidential Information does not include any information that:
15.4.1 is or becomes publicly available without breach of this Agreement (provided, however, information that is rumoured or reported does not become public based only on such rumours or reports),
15.4.2 was known by the Receiving Party prior to its receipt from the Disclosing Party,
15.4.3 is disclosed to the Receiving Party from any third party, except where the Receiving Party knows, or reasonably should know, that such disclosure constitutes a wrongful or tortious act, or
15.4.4 is independently developed by the Receiving Party without use of any Confidential Information.
15.5 The Receiving Party will restrict the possession, knowledge and use of the Confidential Information to its Personnel who:
15.5.1 have a need-to-know Confidential Information in connection with the Relationship,
15.5.2 are informed of the confidential nature of the Confidential Information, and
15.5.3 have obligations with respect to the Confidential Information that are consistent with this Agreement.
15.6 Each of LightWare and the Company will ensure that its Affiliates comply with this Agreement.
15.7 The Receiving Party will notify the Disclosing Party promptly upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Receiving Party. The Receiving Party will cooperate with the Disclosing Party to help the Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use and disclosure.
15.8 All Confidential Information will remain the exclusive property of the Disclosing Party. The Disclosing Party’s disclosure of Confidential Information will not constitute an express or implied grant to the Receiving Party of any rights to or under the Disclosing Party’s patents, copyrights, trade secrets, trademarks, or other intellectual property rights. Except to the extent permitted by applicable law in the absence of any express license or other grant of rights, neither party will use any trade name, trademark, logo or any other proprietary rights of the other party (or any of its Affiliates) in any manner without prior written authorization of such use by an authorized delegate of such other party.
15.9 The Receiving Party acknowledges that a breach of its obligations under this Agreement could cause irreparable harm to the Disclosing Party as to which monetary damages may be difficult to ascertain or an inadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. Unauthorized disclosure allows the disclosing party to terminate the agreement’s information-sharing obligations immediately.
16. Intellectual property rights
16.1 The Customer acknowledges that LightWare is the owner or licensor of all intellectual property rights, including it’s technology, software, products, product designs, services, processes, technical knowhow, processes, patents, data, customers, business plans and methods, product roadmaps, promotional and marketing activities, finances, commercial agreements, pricing, discounts, quotations, tenders and other business affairs and secrets, the contents of the Website, product guides, data sheets, or any material created by and for LightWare and that reproduction in part or whole is prohibited without written consent from an authorized representative of LightWare.
17. Data protection and customer information
17.1 By transacting with LightWare, the customer explicitly consents to LightWare collecting, storing and processing personal details of the Customer and its Personnel for the purpose of providing products and services to the Customer. In addition, LightWare may disclose the Customer’s and its Personnel details to organizations working on behalf of LightWare anywhere in the world (for example, credit reference agencies, mailing houses and call centers) for the purpose of proper fulfilment of LightWare’s obligations under these Terms.
18. Breach
18.1 If the Customer breaches any of its obligations to LightWare, whether under this Agreement or otherwise, and fails to remedy such breach within 7 calendar 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:
18.1.1 suspend performance of any of its obligation and to claim any additional costs and expenses incurred as a result thereof;
18.1.2 cancel any agreement; and/or
18.1.3 to retain, as a penalty, all amounts paid by the Customer or alternatively to claim such damages as it may have suffered.
18.2 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 by the Customer.
18.3 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:
18.3.1 delivers a written notice referred to in clause 14.1 to LightWare;
18.3.2 is liquidated (provisionally or finally, voluntarily or compulsorily);
18.3.3 effects a general compromise or any other arrangement with its creditors; and/or
18.3.4 suffers any judgment 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. Dispute resolution
19.1 Any dispute arising from or in connection with the Agreement, its breach, termination or cancellation must be resolved in terms of this clause.
19.2 Disputes must be referred to senior executives of each Party with settlement authority as soon as possible for attempted resolution. The Parties’ senior executives must attempt to resolve the dispute as speedily as possible and will meet as often as necessary to do so, not later than 14 days from the date when the dispute has been declared.
19.3 Any settlement must be recorded in writing and signed by authorized persons on behalf of each Party.
19.4 The senior executives will have failed to resolve the dispute when either Party declares this to be the case.
19.5 If the senior executives do not resolve the dispute, the dispute will be resolved by way of mediation and then arbitration at the instance of either Party.
19.6 The arbitration will be held, subject to the provisions of the Agreement, with only the Parties, their legal representatives, arbitrator/s and any witnesses who may be called to give evidence present and otherwise in accordance with the Rules of the Arbitration Foundation of Southern Africa (“AFSA”).
19.7 The arbitrator will be a senior counsel with no less than ten years standing agreed on between the Parties. If the Parties cannot agree upon an arbitrator within 10 (ten) Business Days after the arbitration has been demanded, the arbitrator will be appointed by the chairperson of AFSA at the request of either Party. Such arbitration shall take place in English and at Sandton, South Africa.
19.8 The arbitrator will be obliged to give written reasons for the award, which will be subject to appeal in terms of the appeal rules of the Foundation.
19.9 Either Party may have the award of an arbitrator, including an award on appeal made an order of court.
19.10 Nothing contained in the Agreement will preclude either Party from obtaining urgent or interim relief on an urgent basis from a court of competent jurisdiction.
19.11 This clause constitutes each Party’s irrevocable consent to arbitration proceedings, and no Party may withdraw from such proceedings or claim that it is not bound by this clause.
19.12 The Parties will continue to perform their respective obligations under the Agreement pending the resolution of a dispute, it being agreed that neither Party may, without the agreement of the other, terminate the Agreement based on the issues under dispute until the dispute is finally resolved.
19.13 A demand by a Party to submit a dispute to arbitration in terms of this clause is adequate legal process to interrupt any time bar laws in respect of legal claims.
19.14 This clause is a separate, divisible clause from the rest of the Agreement and will remain in effect even if the balance of the Agreement is nullified, expires or is terminated.
20. Law and jurisdiction
20.1 This Agreement between LightWare and the Customer 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.
21. Domicilia and notices
21.1 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 this Agreement:
Address: 600 17th Street, Suite 2800 South, Denver, CO 80202-5428, United States of America
Tel: +1 720 927 4258
E-mail: [email protected]
21.2 The Customer nominates the physical and email addresses on its latest order as its domicilium citandi et executandi for the service upon it of all process and notices, in connection with this Agreement.
21.3 The notice shall be deemed to have been duly given:
21.3.1 on delivery to a physical address between 08h00 and 16h00 on a business day;
21.3.2 on dispatch, if sent to an e-mail address between 08h00 and 16h00 on a business day (or on the first business day after that if dispatched 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.
22. Miscellaneous
22.1 Each provision of this Agreement, and each part of any such provision, is separate and severable from the others. To the extent that any provision in these Terms, 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 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.
22.2 The rule of construction that if general words or phrases are used in association with specific words or phrase which are a species of a particular genus or class, the meaning of the general words or phrase 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.
22.3 The rule of interpretation that, in the event of ambiguity, the Agreement must be interpreted against the Party responsible for the drafting of the Agreement, does not apply.
22.4 No contract varying, adding to, deleting from or cancelling these Terms, and no waiver of any right under these Terms shall be effective unless reduced to writing and signed by or on behalf of the parties.
22.5 The grant of any indulgence, extension of time, failure to enforce, or relaxation of any provision by a party under these Terms 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.
22.6 The Customer may not cede any or all of its rights or delegate any or all of its obligations under these Terms without the prior written consent of LightWare.
22.7 Unless the context indicates otherwise an expression, which denotes any gender includes all others; reference to a natural person includes a juristic person; the singular includes the plural, and the plural includes the singular.
22.8 All descriptions of the products and services contained in the LightWare website, written documentation or otherwise communicated to the Customer are approximate only and shall not form any part of the Transaction between LightWare and the Customer. LightWare shall not be liable to the Customer for any errors or omissions in its information. No statement, recommendation, figure, advice, formula, specification, illustration, diagram, price list, dimension, weight, performance estimate, drawing or any other representation given by LightWare to the Customer shall form part of the Agreement.
22.9 LightWare reserves the right to modify these Terms at our sole discretion, at any time and without notice.
22.10 The clause headings in this agreement are for the purpose of convenience only and shall not be taken into account in the interpretation of, nor modify the terms of this Agreement.4331551 720 927 4258
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