Terms and conditions of sale

All orders are accepted by LightWare Optoelectronics (Pty) Ltd are subject to the Conditions of Sale set out below:

1. General

All orders for products and services are accepted by LightWare Optoelectronics (Pty) Ltd, a company registered in South Africa under registration number 2011/142696/07 subject to these terms and conditions of sale. No other terms will apply to the supply of products or services by LightWare Optoelectronics (Pty) Ltd unless agreed in writing by an authorised signatory of LightWare Optoelectronics (Pty) Ltd. 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 Optoelectronics (Pty) Ltd and the Customer. LightWare Optoelectronics (Pty) Ltd shall not be liable to the Customer for any errors or omissions in its information. 

LightWare Optoelectronics (Pty) Ltd 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. 

2. Prices

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 Optoelectronics (Pty) Ltd reserves the right to change prices without prior notice at any time.

 

3. Ordering

LightWare Optoelectronics (Pty) Ltd reserves the right to decline to trade with any person. In addition, LightWare Optoelectronics (Pty) Ltd may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the Customer by telephone or email. Orders are deemed to have been accepted by LightWare Optoelectronics (Pty) Ltd unless LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd next has available stock. 

Backorder delivery dates will be communicated to the Customer and LightWare Optoelectronics (Pty) Ltd will endeavour to deliver orders on time. However LightWare Optoelectronics (Pty) Ltd 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 12 will apply.

LightWare Optoelectronics (Pty) will not sell to comprehensively embargoed countries, either directly or through a third party. If it comes to LightWare Optoelectronics (Pty)’s attention that goods are bound for such countries, LightWare Optoelectronics (Pty) will decline the transaction.

The following countries fall under this category at this time:
    • Crimea Region of Ukraine
    • Cuba
    • Iran
    • North Korea
    • Sudan
    • Syria

This list must be updated from time to time.

 

4. Delivery

Delivery will be on DAP Incoterms (Delivered at Place) and will be quoted using a LightWare Optoelectronics (Pty) Ltd contracted courier for all exported orders. DAP means the Customer is responsible for customs and clearing charges in the import country. 

LightWare Optoelectronics (Pty) Ltd 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 21, 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 Optoelectronics (Pty) Ltd 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.

 

5. 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 Optoelectronics (Pty) Ltd shall not be liable for any delay in delivery. If any delivery is late, the Customer must notify LightWare Optoelectronics (Pty) Ltd, and LightWare Optoelectronics (Pty) Ltd will endeavour to assist the Customer. 

In cases of non-delivery or lost courier parcels LightWare Optoelectronics (Pty) Ltd will endeavour to send replacement products as soon as possible.

 

6. Payment

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.

 

7. 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.

 

8. Product and availability information

LightWare Optoelectronics (Pty) Ltd 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.

 

9. Warranty

No warranties are implied or offered on any products supplied by LightWare Optoelectronics (Pty) Ltd. In the case of out of the box failures, LightWare Optoelectronics (Pty) Ltd will use its discretion to best rectify the situation. 

Before any products are returned to LightWare Optoelectronics (Pty) Ltd for repair the Customer must obtain an RMA (Return Merchandise Authorization) number. 

Products returned to LightWare Optoelectronics (Pty) Ltd are at the Customer's cost and the Customer's risk. LightWare Optoelectronics (Pty) Ltd accepts no responsibility for any loss of or damage to products in transit from Customer to LightWare Optoelectronics (Pty) Ltd.

In case LightWare Optoelectronics (Pty) Ltd determines the repair to be a warranty repair then LightWare Optoelectronics (Pty) Ltd will return the products to the Customer on LightWare Optoelectronics (Pty) Ltd’s cost.

 

10. Limitations of use

Products sold by LightWare Optoelectronics (Pty) Ltd 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.

 

11. Limitations and exclusions of liability

LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) 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 Optoelectronics (Pty) Ltd and the Customer, or of any order accepted by LightWare Optoelectronics (Pty) Ltd; (ii) any duty of any kind imposed on LightWare Optoelectronics (Pty) Ltd by law arising out of or in relation to the contract between LightWare Optoelectronics (Pty) Ltd 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 9, 10 and 11, any liability attaches to LightWare Optoelectronics (Pty) Ltd, 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 Optoelectronics (Pty) Ltd and the Customer, or of any order accepted by LightWare Optoelectronics (Pty) Ltd; (ii) any duty of any kind imposed on LightWare Optoelectronics (Pty) Ltd by law arising out of or in relation to the contract between LightWare Optoelectronics (Pty) Ltd 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 ZAR10,000 or the total value of the order, whichever is greater.

 

12. Cancellations and returns

The Customer may not cancel orders once accepted by LightWare Optoelectronics (Pty) Ltd. LightWare Optoelectronics (Pty) Ltd may, at its discretion and in writing, allow an order to be cancelled subject to LightWare Optoelectronics (Pty) Ltd recovering from the Customer the costs incurred by LightWare Optoelectronics (Pty) Ltd. In the event of cancellation of part of any order only, LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd for credit or refund. LightWare Optoelectronics (Pty) Ltd may, at its discretion and in writing, allow a return for credit or refund. 

Products returned to LightWare Optoelectronics (Pty) Ltd are at the Customer's cost and the Customer's risk. LightWare Optoelectronics (Pty) Ltd accepts no responsibility for any loss of or damage to products in transit from Customer to LightWare Optoelectronics (Pty) Ltd.

 

13. 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.

 

14. Force majeure

A force majeure event is any event beyond the reasonable control of LightWare Optoelectronics (Pty) Ltd (including strikes, traffic congestion, the downtime of any external line, or LightWare Optoelectronics (Pty) Ltd's inability to procure services, materials or articles required for the performance of the contract). If LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd 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.

 

15. 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 Optoelectronics (Pty) Ltd in relation to the products and the handling and use thereof;

(iii) take proper notice of the warnings provided by LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd against all actions, claims, costs, demands and expenses incurred or suffered by LightWare Optoelectronics (Pty) Ltd arising out of the breach by the Customer of this clause 15.

 

16. Business rescue

If the Customer is a company, it must notify LightWare Optoelectronics (Pty) Ltd 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 16; 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.

 

17. Breach

If the Customer breaches any obligation owed by it to LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd requiring it to do so, LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd in law, LightWare Optoelectronics (Pty) Ltd 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 16 to LightWare Optoelectronics (Pty) Ltd;

(ii) becomes Financially Distressed, or any person undertakes or proposes any activity contemplated in (ii) or (iii) of clause 16;

(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.

 

18. Intellectual property rights

The Customer acknowledges that LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd.

 

19. Data protection and customer information

LightWare Optoelectronics (Pty) Ltd 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 Optoelectronics (Pty) Ltd may disclose the Customer's and its employees' details to organisations working on behalf of LightWare Optoelectronics (Pty) Ltd anywhere in the world (for example, credit reference agencies, mailing houses and call centres) for the purpose of proper fulfilment of LightWare Optoelectronics (Pty) Ltd's obligations under these terms and conditions of sale.

 

20. Law and jurisdiction

The contract between LightWare Optoelectronics (Pty) Ltd 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.

 

21. Domicilia

LightWare Optoelectronics (Pty) Ltd nominates the following address as its domicilium citandi et executandi for the service upon it of all process, and the following physical address, fax number and e-mail address for the service upon it of all notices, in connection with these terms and conditions of sale:

Address: Suite 11 Midlands Office Park, 1 Mount Quray Street, Midstream Estate, 1692, South Africa

Tel: +27 12 942-0408

E-mail: info@lightware.co.za

The notice shall be deemed to have been duly given:

(i) 5 Business Days after posting, if posted by registered post (airmail, if available) to the Party's address;

(ii) on delivery, if delivered to the Party's physical address between 08h30 and 17h00 on a Business Day (or on the first Business Day after that if delivered outside such hours);

(iii) on despatch, if sent to the Party's e-mail address between 08h30 and 17h00 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.

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 that Party notwithstanding that it was not sent to or delivered at that Party's chosen address.

 

22. Miscellaneous

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.

 

23. 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.