Please carefully and completely read the following terms and conditions (these “Terms” or this “Agreement”) before accessing or using our website at https://www.optiteraglobal.ca (the “Site“), or obtaining any products, information, or services (“Product” or “Products”). By placing an order for any Product from the Site, you accept and are bound by these Terms, thus creating a binding and enforceable contract. These Terms contain important information regarding rights, obligations, conditions, waivers, limitations, releases, and exclusions that apply to you. You may not order or obtain products from the Site if you (a) do not agree to these terms and conditions, (b) are not the older of at least 18 years of age or the legal age to form a binding contract for products, or (c) are prohibited from accessing or using the Site or any of the Site’s contents or goods by applicable law.
THESE TERMS INCLUDE A CLAUSE FOR ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
These Terms apply to the purchase and sale of Products through the Site as well as the general use of the Site. The purchase of Products and use of the Site comprise our “Services”.
Throughout these Terms, “Optitera“, “us“, “we“, or “our” refers to Optitera Global Networks Inc. and its members, managers, owners, directors, officers, agents, representatives, employees, and contractors. Additionally, throughout these terms “you” and “your” refers to you, the purchaser or user of our Services and any entity you are transacting on behalf as an agent.
ACCOUNTS
Before you can purchase products from the Site, you must register and create an account. Failure to create an account does not waive, release, void, nullify these Terms. When you create an account with us, you must provide information that is accurate, complete, and current. If the information changes, you must update the information before placing any order. Failure to provide accurate or complete information or failure to update information constitutes a breach of these Terms, which may result in immediate termination of your account. You are responsible for safeguarding the password that you use to sign into your account to purchase Products from the Site. You agree not to disclose your password to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account. For new accounts, we require a guaranty of payment of all purchase orders to be executed by one of the principals of your business.
ORDER ACCEPTANCE / CANCELLATION / BACKORDER INVENTORY
You agree that your order from us is an offer to buy, under these Terms, all Products listed in your order. All orders must be accepted by us or we will not be obligated to sell the Products to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the Products you have ordered. Acceptance of your order and the formation of the contract of sale between us and you will not take place unless and until you have received your shipping confirmation email.
You have the option to cancel your order by emailing us at sales@optiteraglobal.ca and so long as we received and acknowledge such email before we have your order and upon subject to the other terms contained herein.
Backordered inventory is inventory currently not in stock that is sold and will be delivered when it becomes available. There may be delays for the backorder Products due to unforeseen circumstances during the shipping process or inadequacies on the manufacturer’s side. If you order a Product that is out of stock, we do not and cannot guarantee an estimated time of shipment, delivery, or availability. We will do our best to make sure you get the Products in a reasonable timeframe. Please note that someone may have allocated inventory prior to you, and your order may not be fulfilled from the next shipment we get in of the Products you ordered. When placing an order that contains Products that are in stock as well as Products that are out of stock, the in-stock Products will ship according to our standard shipping policies.
PRICES
All prices posted on this Site are subject to change without notice. The price charged for a Product will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
PAYMENT TERMS
Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order.
Credit Cards
- We accept American Express, Discover, Master Card, and VISA for all purchases, except international purchases unless pre-approved. For international purchases, we accept PayPal and wire transfers.
- For first time purchases for an account, we cannot ship to an address that is different than the billing address. The shipping address must match the billing address of the card being used and the Street Address, ZIP Code and the CSC number (also known as the CVC or CVV number) must match the card used for the purchase. After the first purchase is completed and all funds have been received, we will then be able to ship to different addresses for you.
- When paying with credit card, you represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
- When you place an order with us using a credit card, an authorization will be posted to your account. Once the order has been shipped out the amount will then be charged. If your order is shipped out partial, we charge you for what is shipped out. Once the other Products become available and shipped, the remaining balance for those Products will then be charged to your account.
b. Wire Transfers
We accept wire transfers for all purchases. If paying by wire transfer, your order will not be approved and released until the transfer is complete and the funds are in our account. Wire fees are the responsibility of the sender, and may be collected in advance. For wiring information, please contact us.
c. PayPal
We accept PayPal for all purchases. You may choose this payment method when you place your order online.
d. Net Term Accounts
- We offer net terms to approved customers. Net term customers must keep their account in good standing or all shipments for the account will automatically cease until it is reconciled. A service charge of 1.5% per month (annual rate of 18%) may be charged on all invoices past due (with a minimum finance charge of $10 USD). For clarity, “in good standing” means that on a term account of net 30 days, we will receive payment in full within 30 days of the invoice date any payments received later than the stated terms would indicate a late payment and any balances on account past the term days are past due and the account is not in good standing. If your account repeatedly goes into bad standing, your account will lose terms and automatically revert to C.O.D.
- An administrative charge in the amount of $50.00 USD may be levied for administration on account processing activities in connection with your account, including as a result of collection efforts due to non-payment, having a balance over your credit limit, returned or rejected payments due to non-sufficient funds (“NSF”), or returned for any other reason.
- If payment is still not received for a further 30 days past the terms due date, the account will be turned over to collection agency for collection. The account holder will be liable for collection and/or incurred legal fees and cost. Any credit cards associated to the account may be used to satisfy any past due amounts without prior agreement.
- All net term customers must agree to the terms of our Master Purchase Agreement. If there is a credit card on file and the account becomes delinquent, we may charge the balance to all cards on file to get the account current. However, in the normal course of business NET TERM ACCOUNTS MAY NOT BE PAID WITH A CREDIT CARD.
SHIPMENTS / DELIVERY / TITLE AND RISK OF LOSS
a. We will arrange for shipment of the Products to you. Please check the individual Product page for specific shipping options. You will pay all shipping and handling charges specified during the ordering process. Depending on the shipping options you choose, estimated delivery dates and times may appear. These are estimates and are not guaranteed. We occasionally ship from multiple warehouses and your order may arrive in multiple boxes and at different times.
b. Title and risk of loss pass to you upon our transfer of the Products to the carrier. You should physically inspect all shipments upon receipt and report and notify the delivery carrier / person of any damages. While we will assist you in providing documentation of shipping information, you are responsible for claims against the carrier for damaged goods.
c. Shipping and delivery dates are estimates only and cannot be guaranteed. You hereby WAIVE AND RELEASE Optitera from all liability for any and all damages, costs, fees, or harm alleged to be caused or actually caused by or in connection with delays in shipments, damages to Products during shipment, or damages to packaging of Products during shipment. These damages include, but not limited to: actual damages, out-of-pocket expenses, consequential damages (such as lost profits, lost opportunities, increased financing, default on third-party contracts, damage to goodwill and reputation, loss of use, rental charges for temporary equipment, and more), indirect damages, and special damages.
d. Orders over 150 pounds ship by freight and we will contact you with shipping charges. Our shipping and processing charges are intended to compensate our company for processing your order, handling, packing the purchased Products, delivery, and covering related overhead.
e. For international shipping, delivery times vary on location and depend on the country. We reserve the right to bill you for additional handling fees incurred by us in conjunction with delivering the Product to you. These additional handling fees include, but are not limited to: extended area surcharge, address change or correction while in-transit, oversize box surcharge, shipment intercept, hold for pickup at terminal, and other fees. Import duties and brokerage fees for international shipment are your sole responsibility.
RETURNS
a. We accept most new, unopened Products within 30 days of delivery for a full refund. We do not accept any returns for any Product after 30 days. To receive a full refund, the Product must be returned unopened in new condition with all packing material, manuals, and accessories. Products that are not returned in this condition are subject to a minimum restocking fee of 25% at our discretion. This includes opened packaging, missing or used packing materials, missing or used accessories, writing, marking, or labels or stickers to the Product packaging or to the Product itself.
b. To return Products, you must email our Returns Department at cs@optiteraglobal.ca to obtain a Return Merchandise Authorization (“RMA“) number before shipping your Product. No returns of any type will be accepted without an RMA number.
c. You are responsible for all shipping and handling charges on returned Products. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.
d. WE OFFER NO REFUNDS ON ANY SPECIAL ORDER PRODUCTS AND PRODUCTS DESIGNATED ON THE SITE AS NON RETURNABLE.
GOODS NOT FOR RESALE OR EXPORT
You agree to comply with all applicable laws and regulations of the various provinces and of the Canada concerning the Products. You represent and warrant that you are buying products from the Site for your own use only, and not for resale or export.
FAILED PRODUCTS
If the Products you purchased fail within the manufacture warranty period, please contact us for instructions. Each manufacturer has different warranty policies. If we handle the returns for the manufacturer of the failed Product, we will provide instructions.
LIMITED WARRANTY – MANUFACTURER ONLY
Optitera Global Networks does not make any express or implied warranties for the Products sold to you, including without limitation, the warranties of merchantability and fitness for a particular purpose. Any warranties that may exist for the Products Optitera sells are warranties by and through the manufacturer only.
You hereby WAIVE AND RELEASE any and all express and implied warranties in connection with any Product sold to you by Optitera.
Any performance or conduct or oral or written information, statement, or advice provided by Optitera will not create an express or implied warranty.
It is the intent of the parties that the above waiver and release are as broad as the applicable law allows. To the extent any portion is prohibited under applicable law, that portion, and only that portion, may be modified to comply with the applicable law.
LINKS TO OTHER WEBSITES / INFORMATION FROM OTHER WEBSITE
Our Services may contain links to third-party websites or services that are not owned or controlled by us. We have no control over and assume no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You hereby WAIVE AND RELEASE Optitera from all liability for any and all damages or losses caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or services. We strongly advise you to read the terms and conditions and privacy policies of any third party websites or services that you visit.
It is the intent of the parties that the above waiver and release are as broad as the applicable law allows. To the extent any portion is prohibited under applicable law, that portion, and only that portion, may be modified to comply with the applicable law.
TERMINATION
We may terminate or suspend either your access to our Services or your account immediately, without prior notice or liability, for any reason whatsoever, including, without limitation, if you breach these Terms. Upon termination, your right to use the Services will immediately cease. If you wish to terminate your account, you may simply discontinue using the Services; however, the termination will not relieve you of any liability for outstanding purchase orders, or purchase orders that are currently being processed. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, security interests, warranty disclaimers, indemnities, waivers, releases, covenants not to sue or initiate or join legal proceedings, and limitations of liability.
ASSIGNMENT
You hereby agree you will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of these Terms is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
WAIVER
No waiver by us of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by us. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
NO THIRD-PARTY BENEFICIARIES
These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
FORCE MAJEURE
Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any provision of these Terms (except for any of your obligations to make payments to us hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) control, including, without limitation, the following force majeure events (“Force Majeure Event“): (a) acts of God; (b) flood, fire, earthquake, hurricane, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; and (f) national or regional emergency. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it, then either party may thereafter terminate these Terms upon three (3) days’ written notice.
GOVERNING LAW
These Terms shall be governed and construed in accordance with the laws of Texas, United States, without regard to its conflict of law provisions. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect.
EXCLUSIVE JURSIDICTION AND VENUE
You hereby acknowledge and agree that the province courts located in Ontario, Canada have personal jurisdiction over you for all claims, controversies, causes of actions, demands, or disputes arising from statute, regulation, common law, equity, contract, warranty, fraud, negligence, or other tort (“Claim” or “Claims”) arising out of, related to, or incidental to this Agreement, and that all such Claims shall be resolved exclusively by the province courts located in Ontario, Canada, unless arbitration is elected by Optitera. Notwithstanding the foregoing, you hereby agree that any appeals from these province courts may have to be heard by a court located outside of Ontario, Canada. You hereby waive all objections that you may have to personal jurisdiction and the location of the courts in Ontario, Canada, including, but not limited to, objections based on inconvenience.
DISPUTE RESOLUTION
a. Mediation
If a Claim arises from or relates to this Agreement, the breach thereof, or any Product sold by Optitera, and if the Claim cannot be settled through direct discussions, the parties agree to endeavor first to settle the Claim by mediation administered by a private mediator of the parties’ joint and agreed upon selection, and if no mediator can jointly be agreed upon within 10 days, by the International Centre for Dispute Resolution under its International Arbitration and Mediation Rules before resorting to either arbitration or litigation, per the provisions below.
Arbitration – ICDR Canada
You hereby agree that any unresolved Claim arising out of or relating to this Agreement, the breach thereof, or any Product sold by Optitera, may be settled by arbitration administered by the International Centre for Dispute Resolution under its International Arbitration and Mediation Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You acknowledge and hereby agree that the determination whether to seek resolution of a Claim via arbitration is solely the choice of Optitera. Any province, country, or administrative action initiated by you can be removed to arbitration by Optitera pursuant to this Agreement. You hereby waive any objections to this sole option held by Optitera and any objections to remove any state, federal, or administrative action to arbitration.
All claims shall be heard by a single arbitrator, unless a Claim amount exceeds $1,000,000, in which case the Claim shall be heard by a panel of three (3) arbitrators. The place of arbitration shall be in Ontario, Canada, to be decided solely by Optitera. The arbitration shall be governed by the laws of the Province of Canada. In accordance with these Terms, the arbitrator(s) shall not award consequential damages to you in any arbitration initiated under this section. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrators, all of their costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
c. Province Court Litigation / Waiver to Jury
All Claims arising out of or relating to, this Agreement, breach thereof, or any Product sold by Optitera, and which is not asserted in or removed to arbitration, shall be decided in a province court of competent jurisdiction located in Ontario, Canada. You acknowledge and agree, we may remove or transfer any pending action or suit to a province court located in Ontario, Canada. You expressly acknowledge and hereby WAIVE YOUR RIGHT TO A TRIAL BY JURY for all claims, demands, causes of action, and controversies forming the basis of any lawsuit, and all such claims, demands, causes of actions, or controversies shall only be decided by a judge of the applicable province court.
WAIVER, RELEASE, AND COVENANT RELATING TO CERTAIN DAMAGES
You hereby acknowledge and agree that you WAIVE, RELEASE, AND COVENANT NOT TO SUE OR INITIATE OR JOIN ANY LEGAL PROCEEDINGS AGAINST OPTITERA for any consequential, indirect, special or punitive / exemplary damages, which arise from any acts of omissions of Optitera, including, but not limited to, the sale, use, or failure of any Product, regardless of whether the damages arise from statute, regulation, contract, warranty, equity, fraud, negligence, or other torts (“Excluded Damages”). A non exhaustive list of Excluded Damages is: lost revenue, lost profits, lost business opportunities, increased or additional financing costs, lost financing opportunities, lost investments, attorneys’ fees not permitted herein, loss of use of personal or real property, damage to personal or real property, bodily injuries or death, or third-party claims.
You further acknowledge and agree that breaching this waiver, release, or covenant constitutes a material breach of this Agreement and you will be liable for, but not limited to, all attorneys’ fees, court costs, and litigation costs incurred by Optitera defending against the recovery of Excluded Damages.
It is the intent of the parties that the above waiver, release, and covenant are as broad as the applicable law allows. To the extent any portion is prohibited under applicable law, that portion, and only that portion, may be modified to comply with the applicable law.
WAIVER, RELEASE, AND COVENANT RELATING TO CERTAIN CLAIMS
You hereby acknowledge and agree that you WAIVE, RELEASE, AND COVENANT NOT TO SUE OR INITIATE OR JOIN ANY LEGAL PROCEEDINGS AGAINST OPTITERA for all Claims that arise from or are in connection with any Product. of whether such Claim arises from our negligence acts or omissions. This waiver, release, and covenant includes, but is not limited to, Claims based on the alleged or actual negligent acts or omissions of Optitera, you, your employees, agents, representatives, or third parties.
You acknowledge and agree your only recourse for all Claims arising a Product may only be against the Product’s manufacturer, and as such you COVENANT TO ONLY SEEK DAMAGES AND REMEDIES FROM THE SUBJECT PRODUCT’S MANUFACTURER.
You further acknowledge and agree that breaching this waiver, release, or these covenants constitutes a material breach of this Agreement and you will be liable for, but not limited to, all attorneys’ fees, court costs, and litigation costs incurred by Optitera defending against suits or actions brought by you and forming the basis of the material breach.
It is the intent of the parties that the above release, waiver, and covenants are as broad as the applicable law allows. To the extent any portion is prohibited under applicable law, that portion, and only that portion, may be modified to comply with the applicable law.
LIMITATION OF LIABILITY
Subject to the foregoing waivers, releases, and covenants, and without waiving or modifying them, you hereby acknowledge and agree that if Optitera is found liable to you for any Claim, whether arising from these Terms, the breach thereof, the sale, use, or failure of any Product, or otherwise, OPTITERA’S TOTAL AMOUNT OF LIABILITY IS LIMITED TO, AND IN NO CIRCUMSTANCES SHALL IT EVER EXCEED, the actual amount you paid for the Product or Products that form the basis of the Claim, and if no Product forms the basis of the Claim, Optitera’s liability is limited to, and in no circumstances shall it ever exceed, $50,000. In both instances of limitation of liability, the limitation includes, but is not limited to, all pre-judgment and post-judgment interest, court costs, expert witness fees, witness fees, depositions, subpoenas, and attorneys’ fees.
It is the intent of the parties that the above limitation of liability is as broad as the applicable law allows. To the extent any portion is prohibited under applicable law, that portion, and only that portion, may be modified to comply with the applicable law.
YOUR INDEMNIFICATION AND DEFENSE OF OPTITERA
You hereby acknowledge and agree that you assume all risk, liability, obligations and losses in connection with, and you shall DEFEND, INDEMNIFY, AND SAVE AND HOLD HARMLESS OPTITERA from and against all Claims asserted by third parties which arise from or in connection with (i) the purchase, use, or failure of any Product, and (ii) any breach by you of your representations, warranties, obligations, or covenants under this Agreement. This duty to indemnify, defend, save, and hold harmless includes, but is not limited to Claims, based on the alleged or actual negligent acts or omissions of Optitera, you, your employees, agents, representatives, or third parties.
It is the intent of the parties that the above defense, indemnification, and hold harmless agreement is as broad as the applicable law allows. To the extent any portion is prohibited under applicable law, that portion, and only that portion, may be modified to comply with the applicable law.
CLASS ACTION WAIVER
You hereby agree that to the fullest extent permitted by law, no class or collective actions can be asserted in arbitration or otherwise. All claims, whether in arbitration or otherwise, must be brought solely in your individual capacity, and not as a plaintiff or class member in any purported class or collective proceeding.
NOTICES.
a. To You:
We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current and review the Site periodically.
b. To Us:To give us notice under these Terms, you must contact us as follows: (i) by personal delivery, overnight courier, or registered or certified mail. We may update the address for notices to us by sending a message to the email address you provide or posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one (1) business day after they are sent. Notices provided by registered or certified mail will be effective three (3) business days after they are sent.
SEVERABILITY
If any provision of these Terms is invalid, illegal, void, or unenforceable, then the specific portion(s) of the provision that make it invalid, illegal, void, or unenforceable will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
ENTIRE AGREEMENT
These Terms along with any Master Purchase Agreement you enter and our Privacy Policy constitute the final, integrated, entire agreement between us regarding our Services, and supersede and replace any prior agreements, representations, or warranties made outside these Terms, Master Purchase Agreement you enter or our Privacy Policy and which we might have between us regarding the Services. Should there be any conflict between these Terms, any Master Purchase Agreement you enter, and our Privacy Policy, that cannot be harmonized, the order of precedent is the Master Purchase Agreement controls first, these Terms second, and the Privacy Policy third.
