GENERAL TERMS AND CONDITIONS
OF SALES AND DELIVERY

1. Preamble

Our General Terms and Conditions of Sales and Delivery shall exclusively apply to all contracts between us, Optima Tele.com, Incorporated (OPTIMA) and the buyer. Any differing conditions or terms of buyer are herewith objected to and shall not apply. Any agreement affecting the execution of this contract must be in writing.

2. Scope

These General Terms and Conditions of Sales and Delivery will apply to all offers, (purchase) agreements, deliveries and activities of OPTIMA. With placement of the order or at the latest upon receipt of the products the buyer acknowledges these General Terms And Conditions Of Sales And Delivery.

These General Terms And Conditions Of Sales And Delivery shall apply for the entire duration of the business relationship, i.e. for subsequent transactions as well. These General Terms And Conditions Of Sales And Delivery need only be provided once.

Delivery is made and services are carried out by OPTIMA only on the basis of the following General Terms And Conditions Of Sales And Delivery, if the parties do not agree otherwise in writing. Any and all terms and conditions – including those of the contract partner –, if not explicitly accepted by OPTIMA in writing, are not binding for OPTIMA, even if OPTIMA does not expressly reject them.

In the event any provision of the General Terms And Conditions Of Sales And Delivery shall be held to be entirely or part wise invalid, the validity of the remaining provisions of the General Terms and Conditions of Sales and Delivery and the General Terms And Conditions Of Sales And Delivery as such shall remain unaltered in force.

3. Offer And Conclusion Of Contract

Our offers are only binding when they are submitted in writing and when they are explicitly specified as binding. The conclusion of the contract becomes effective upon our written confirmation of an order or upon otherwise expressly confirmed in writing. No variation or purported variation of a term of this or any contract shall bind OPTIMA unless first agreed to in writing.

For the purpose of these General Terms And Conditions Of Sales And Delivery the term “in writing” includes also all communication between the parties by means of email or fax. Our delivery certificate and/or our final invoice are also valid as order confirmation.

Samples, brochures, on-line and print catalogues are to be considered non-binding material for illustration and/or test purposes, giving only an approximation of properties and specification. Weight, volume, material or other relevant technical specifications of the goods measured upon shipment shall be deemed valid.

4. Delivery Period and Acceptance

Delivery dates given in our order confirmation and/or written correspondence are estimated delivery dates and nonbinding otherwise confirmed by us in writing.

We are entitled to extend the delivery date by an appropriate period in case that we or our suppliers are hindered by unforeseeable events or interruptions of operations are considered force majeure. The same shall apply in the event of government intervention, shortages of energy or raw materials, delays in delivery of components supplied by or on behalf of the buyer, strikes, lockouts, lack of means of transportation and other unforeseen supply problems, insofar as they are beyond our control. We shall inform the buyer without delay and ensure that any inconvenience for the buyer is kept to a minimum.

5. Price Of The Goods

Prices valid at date of delivery will be applied. We reserve the right to adapt prices, even for confirmed orders, to reflect any increase in our costs, for any reason beyond our control, like force majeure, shortage of primary material or labour, strikes, official orders, transportation or similar problems, if this increase happens after confirmation of order but before delivery of goods.

Our prices are ex works unless stated otherwise and do not include any kind of taxes.

6. Terms Of Delivery

If not otherwise agreed to in writing, the period of delivery begins at the latest of the following moments:

a) Date of the order confirmation.

b) Date of fulfillment of all technical, commercial and financial requirements on the part of the buyer.

c) The date on which we received the down payment of the products.

Confirmed delivery dates are not fixed dates, unless stated otherwise. We reserve the right to postpone delivery in the case of force majeure for the duration of the obstruction plus a reasonable period of recuperation. Should delivery have become impossible by an act beyond our control we reserve the right to partially or completely rescind the contract.

We reserve the right to partial deliveries. Unless agreed otherwise, delivery is made from the OPTIMA’s premises. Goods travel at cost and danger of client, unless agreed otherwise.

7. Terms Of Payment

Payments have to be made according to the agreed payment conditions. Unless otherwise agreed, our invoices are due to be paid according to the date of invoice and the payment has to be made without deductions to our bank account within 30 days after the date of invoice. Payments are deemed to have been made at the time in which the are received in our business account.

Deduction of discounts require a special agreement. Discount agreement will be completely negated as soon as a default in payment occurs (also in the case of partial payments) and/or if all other due payments have not been made by the time of receipt of the discounted invoice amount, at the latest.

Detention of payments or balancing of payments against claims of buyer against OPTIMA is not allowed, unless these claims are undisputed or legally established. If buyer fails to make payment by due date, without prejudice to any other right or remedy available to the seller, we are entitled to charge the buyer interest on the unpaid amount.

Should there be reasons to doubt the solvency or credit standing of the client, we reserve the right to demand securities or prepayment for any outstanding delivery or declare immediate maturity of all outstanding claims.

8. Retention Of Title

Notwithstanding delivery or passage of risk in the merchandise, property of merchandise shall not pass to the buyer until full payment of all our claims against the buyer, regardless of their grounds, was made. If merchandise is processed or mixed by buyer with goods that we have no property in, we shall become co-owner of these goods, which shall be stored for us by the buyer.

Processing or transformation of the goods is done in our name as a producer, but without obligation to us. Should we loose ownership due to processing or fusion, we will become partial co-owner (value of invoice) of the new product. The client will store the co-owned goods free of charge.

Buyer has the right to process or sell these goods in the regular course of business, as long as payment obligations are fulfilled.

Pledging or cession of these goods is not allowed. For safeguard, receivables based either on the sale of these goods or on any other ground (insurance, torts) are considered fully assigned to us.

Buyer authorizes us to collect them at his costs, a right that we are obliged not to exercise unless buyer fails to meet his payment obligations towards us or, particularly, institutes bankruptcy proceedings.

In the case of bankruptcy or suspension of payment, we have the right to demand that buyer declares the assigned receivables, gives all information and documentation necessary for us to collect our claims and informs garnishee of the assignment. Should third parties try to claim these goods, buyer is obliged to inform them of our property and immediately inform us of the intend. Buyer will be held responsible for costs and damages.

9. Warranty

The buyer shall examine the merchandise, checking the goods in every aspect, and determine if merchandise is suitable for the intended purposes, if necessary by running appropriate tests. Claims will only be accepted if we are informed immediately upon detection of any fault. In the case of hidden faults claims must be made within the agreed upon warranty period.

A 12 months warranty period applies if no other written provisions have been made. If any valid claim of faulty merchandise is made, we will either replace the merchandise free of charge or repair it, the choice being at our sole discretion. The warranty does not cover damages to the goods that were caused by improper handling or storage after the passage of risk or where caused by external factors that were not foreseen in the contract.

We are only liable subject to mandatory law, currently for act of gross negligence and intent. Other claims of whatever nature, under whatever title, in particular, claims for compensation of indirect damage or consequential damages, lost profit or several losses, which arise by the buyer or a third party are expressly excluded. In cases the buyer is claimed by third parties the buyer will hold us harmless
against these claims.

10. Liability Clause

Liability for damages is strictly limited to the provisions made herein, regardless of their nature, particularly with regard to damage claims arising from fault at closure of contract, default at performance of contract. Exclusion or limitation of liability from our side also includes exclusion or limitation of liability of our employees, representatives and auxiliary persons.

Relevant claims against us for compensation, by the contract or third parties under the heading “product liability” in accord with product liability law, are excluded, unless those entitled to compensation prove that the fault was caused by OPTIMA’s area of responsibility, and that it was caused by serious negligence.

11. Technical Advice

Our technical advice is given according to our best knowledge and experience. Buyer is obliged to apply due diligence in verifying applicability of our advice to his special conditions of production or application. Concerning our technical advice, which is given free of charge, we will only be liable for damages caused by gross negligence or deliberate acts on our part or by our lawful representatives or auxiliary persons. Unless intentional violation of contract has been proven, we will only be liable for damages that occur foreseeable and typically.

12. Miscellaneous Clauses

Place of execution and place of venue is Markham, Ontario. We reserve the right to sue at buyer’s place of business. These General Terms And Conditions Of Sales And Delivery, as well as all our business relations with our clients, are governed exclusively by the Laws of the Province of Ontario, Canada.

Some of our goods might require exportation license under Canadian law, or might be subject to export restrictions of Canada, and/or the USA or under the Nonproliferation treaty. These provisions must be observed by the buyer in case of sale or re-exportation of the goods.

13. Legal Succession and Assignment

Orders are binding for the legal successor of the buyer or OPTIMA. The rights and obligations as determined in these General Terms And Conditions Of Sales And Delivery may not be assigned by either the buyer or us without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The above mentioned will not apply in case of assignment by the buyer or us to its legal successor(s). Such an assignment will be valid upon the notification of other party in writing (including e-mail or fax).

14. Salvatorius Clause

Should one of the clauses above or part of one of the clauses above be legally invalid, validity of the other clauses of these General Terms And Conditions Of Sales And Delivery remains unaffected.