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Opta Terms & Conditions for Sale of Goods & Services

1. Definitions:
a) “Conditions” means these terms and conditions for the sale and purchase of Goods, Goods and Equipment (“Goods”) which are incorporated into and form part of the Contract.
b) “Contract” means the contract between the Seller and the Purchaser (subject to the provisions of Clause 2) for the purchase and sale of the Goods, comprising:
(i) the Seller’s quotation (including documents (if any) incorporated by express reference on the face of the quotation) and the acceptance thereof by the Purchaser; or
(ii) the Order and the Seller’s acceptance thereof, together with these Conditions and any additional written agreement
c) “Deliver”, “Delivered” or “Delivery” means the act of:
(i) delivering or making available the Goods ex Works or unless otherwise agreed in writing between Purchaser and Seller
d) “Delivery Date(s)” means the date or dates provided in the Contract, on which Delivery of the Goods or installments of the Goods are to take place respectively; or the extended date or dates for the same pursuant to the notification issued by the Seller.
e) “ex Works” means that the Goods are placed at the disposal of the Purchaser at the Seller’s premises or another named place, not cleared for export and not loaded on any collecting vehicle.
f) “Goods” means the goods means all things (including specially manufactured goods) which are movable at the time of identification to the contract other than the money in which the price is to be paid, investment securities and things in action (including any instalment of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions.
g) “Order” means the written order placed by the Purchaser for the supply of the Goods and documents (if any) incorporated by express reference on the face of the Order.
h) “Party” means the Seller or the Purchaser and “Parties” means both of them.
i) “Purchaser” means the person, firm or company who accepts a quotation of the Seller for the sale of the Goods or who places the Order for the Goods and/or Services.
j) “Purchaser’s Default” means a default of the Purchaser in the manner described in these Conditions.
k) “Seller” means the Opta Minerals Inc. or any of its subsidiaries, referred to on the face of the Order.
2. The headings in these Conditions are for convenience only and shall be ignored in construing these Conditions and shall not affect their interpretation.
3. Words (including words defined in the Contract) importing the singular also include the plural and vice-versa where the context requires. The words “written” and “in writing” include any means of visible reproduction.
4. The Seller shall sell and the Purchaser shall purchase the Goods in accordance with the Contract.
5. In the event of any inconsistency between these Conditions and other documents forming part of the Contract, the following order of priority shall apply:
a) Any written agreement between the Parties where the Parties agree that any of the provisions in these Conditions should be superseded;
b) The Seller’s quotation and documents (if any) incorporated by express reference on the face of the quotation;
c) These Conditions; and
d) The Order.
6. No variation to these Conditions shall be binding unless agreed in writing and signed by the authorized representatives of the Purchaser and the Seller. Any varying terms proposed by the Purchaser in its Order or any other document of the Purchaser shall not become part of the Contract.
7. No Order shall be deemed accepted by the Seller unless and until confirmed in writing by the Seller’s authorized representative.
8. The Purchaser shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification).
9. The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Purchaser) or the Order (if accepted by the Seller). The Seller reserves the right to make any changes in the specification of the Goods if required to conform the Goods to any applicable statutory requirements, provided the changes do not materially affect the quality or performance of the Goods.
10. No Order which has been accepted by the Seller may be cancelled, varied or suspended by the Purchaser except with the agreement in writing of the Seller and on terms that the Purchaser shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation, variation or suspension.
11. The price of the Goods shall be the price stated in the Order as accepted by the Seller or in the absence of such Order or acceptance, the written quotation of the Seller.
12. All prices quoted are valid for the period stated in the quotation (and if no period is stated, for up to 30 days only from the date of issuance of the quotation), after which time they may be altered by the Seller without giving notice to the Purchaser.
13. The quoted prices are based upon the scope of the Goods referred to in the Seller’s written quotation. In the event of any variation in, inter alia, the scope of Goods ordered including delivery dates from that of the Seller’s offer, the Seller reserves the right to vary the prices quoted.
14. Except as otherwise agreed in writing between the Purchaser and the Seller, all prices are given by the Seller on an ex Works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Purchaser shall be liable to pay the Seller’s charges for transport, packaging and insurance.
15. The price is exclusive of any applicable goods and services tax (“GST”) or other government charge or duty, which the Purchaser shall be additionally liable to pay at the rate and in the manner from time to time prescribed by law. If exemption from taxes is claimed, the Purchaser must provide a certificate of exemption. Any additional costs incurred by the Seller pursuant to any Act of Government or any order or regulation made by any governmental body or department shall be paid by the Purchaser. The price shall be net of any withholding tax payable by the Purchaser, and in no event shall the Purchaser be entitled to withhold or deduct any such tax from the price.
16. The Seller shall be entitled to adjustment of the price (to be mutually agreed in writing) in the event of changes in law or engineering standards applicable to or affecting the Goods after the execution of this Contract.
17. After the acceptance of the Order, the Seller reserves the right to suspend performance or withhold delivery under an Order if the Seller in its reasonable opinion determines that the Purchaser’s credit worthiness is unsatisfactory or that the Purchaser will not be able to pay the amounts due and payable under the Contract or if the Purchaser fails to make payment of any amount due and payable (“Suspension”). The Seller shall by written notice to the Purchaser inform the Purchaser of such Suspension.
18. The Purchaser shall pay the price of the Goods within 30 days of the date of the Seller’s invoice. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
19. If the Purchaser fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
a) suspend any further deliveries and/or Services to the Purchaser and terminate the same pursuant to Clause 10 (without being liable to the Purchaser for any losses);
b) at its sole discretion, apply any monies received from the Purchaser in relation to the Contract or any other contract or agreements between the Seller and the Purchaser, including but not limited to deposits or security payments, towards the payment of the relevant invoice; and
c) charge the Purchaser interest on the amount unpaid on a daily basis at the rate of one per cent (1%) per annum above the average Prime Lending Rate of the Development Bank of Nova Scotia, from the due date until payment in full is made.
20. The Purchaser is not entitled to withhold from, set off against or otherwise reduce any payments due to the Seller unless agreed in writing by the Seller.
21. Unless otherwise agreed in writing, Goods shall be delivered ex Works.
22. Partial delivery/performance of Goods ordered is permissible. Where the Goods are to be delivered/performed in installments, each delivery/performance shall constitute a separate contract and failure by the Seller to deliver/perform any one or more of the instalments in accordance with these Conditions or any claim by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to treat the Contract as a whole as repudiated.
23. The Purchaser is obliged to inspect the Goods upon delivery and shall notify the Seller within one (1) week of receipt of the Goods if there are any defects. Such notification of any defects shall be accompanied with relevant supporting evidence.
24. If the Purchaser fails to notify the Seller of the defects within one (1) week of the receipt of the Goods, it will be deemed to have accepted such part of the Goods.
25. The Purchaser shall not be entitled to withhold acceptance or reject a tender for (a) defects which do not materially affect the usage of the Goods; (b) minor deviations or deficiencies which do not materially affect the functioning of the Goods; (c) reasons which are not within the reasonable control of the Seller.
26. Any costs and expenses related to the inspection and/or acceptance of the Goods shall be borne by the Purchaser.
27. The Delivery Date(s) may be extended, at the Seller’s discretion and by written notification to the Purchaser, by such further periods as may reasonably reflect any delay which will or may be or has been caused by any of the following events:
a) Force Majeure, as provided herein;
b) Any variation or suspension of the Contract pursuant to these terms and conditions
c) Any breach of Contract by the Purchaser;
d) Any other circumstances where the Seller is entitled under law to have an extension of time.
28. The Seller shall not be liable for any delays due to an act or omission of the Purchaser (including but not limited to any failure of the Purchaser to comply with any of its obligations under the Contract (“Purchaser’s Default”)). Where there is a Purchaser’s Default, the Seller shall be entitled to claim such increase in costs incurred by the Seller as a result of the Purchaser’s Default.
29. If the Purchaser fails to give the Seller adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to the Seller, the Seller may:
a) store the Goods until actual delivery and charge the Purchaser for the reasonable costs (including insurance) of storage; or
b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Purchaser for any shortfall below the price under the Contract.
30. The Seller will give a credit note only for any Goods or any part thereof that has been wrongly delivered/performed or over supplied.
31. Charges for all handling and transport as determined by the Seller are to be paid by the Purchaser except where such Goods have been wrongly delivered or over supplied or where such charges have been incurred as a result of the Seller’s performance of obligations during the warranty period under these Terms and Conditions.
32. Unless otherwise agreed in writing between the Parties, risk of damage to or loss of the Goods shall pass to the Purchaser as soon as they are Delivered.
33. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, title in the Goods shall not pass to the Purchaser until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Purchaser for which payment is then due.
34. The Seller warrants that, at the time of delivery, the Goods will correspond with their specifications and will be free from material defects.
35. The Seller shall be under no liability under Clause 34 whatsoever:
a) in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Purchaser;
b) in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval or improper or inadequate maintenance by the Purchaser;
c) if the Goods have been used in a manner or under a circumstance or for a purpose not reasonably to be inferred by the Seller or disclosed to the Seller prior to making the Contract;
d) if the total price for the Goods has not been paid by the due date for payment;
37. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller’s sole liability shall be to repair the Goods or replace the Goods (or the part in question) free of charge at the Seller’s sole discretion, or refund to the Purchaser the price of the defective Goods (or a proportionate part of the price).
38. The benefit of this Warranty shall apply only to the Purchaser.
39. Clause 37 sets out the Purchaser’s sole and exclusive remedy for all warranty claims.
40. Termination and/or Suspension of Goods
In the event that:
a) the Purchaser is in breach of the Contract; or
b) the Purchaser makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or have an order made or resolution passed for such winding-up or shall otherwise become insolvent or make such proposal, assignment or arrangement for the benefit of its creditors or have a receiver or manager appointed over its affairs or have an application made to court for the appointment of a judicial manager or be placed under a judicial management order; or
c) an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Purchaser; or
d) the Purchaser ceases, or threatens to cease, to carry on business;
e) there is a change in control of the Purchaser which in the reasonable opinion of the Seller adversely affects the position, rights or interests of the Purchaser. (For the purpose of this sub-clause, “control” means the ability to direct the affairs of another whether by virtue of contract, ownership of shares, or otherwise howsoever); or
f) in the reasonable opinion of the Seller, there occurs a material change in the financial position of the Purchaser which is likely to affect the Purchaser’s ability to perform its obligations under the Contract; or
g) The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly,
the Seller shall be entitled to, by issuance of a written notification, (i) terminate the Contract forthwith on the occurrence of each of the events in Clause 40 or suspend any further deliveries under the Contract without any liability to the Purchaser without further notice.
41. Upon the issuance of Seller’s written notification of such termination or suspension, (i) if the Goods have been delivered or completed but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, and (ii) the Seller shall be entitled to retain any security given or monies paid by the Purchaser and apply the said security or monies against the assessed losses and damages, if any, suffered by the Seller, or if there is no such security or monies paid by the Purchaser, to recover the same otherwise.
42. Termination of the Contract by the Seller shall not discharge the Purchaser from any existing obligation accrued or due on or prior to the date of termination.
43. The rights and remedies granted to the Seller pursuant to the Contract are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity.
44. The fulfilment of the Contract on the Seller’s part is conditional upon the following:
a) all necessary export licenses, permits, licenses and other permissions being obtained by the Purchaser from the relevant authorities for the destination and intended use of the Goods;
b) If the Seller is required to have any permit or license from any governmental or other regulatory authority, such permit or license being granted to the Seller at the required time;
45. The Purchaser shall comply with all relevant statutes, rules and regulations and bylaws affecting its obligations and the performance of the Contract (including any laws and regulations concerning the export, re-export or import of Goods), and shall obtain at its own costs and expenses all necessary permits and licences. The Seller may suspend performance if the Purchaser is in violation of applicable laws or regulations.
46. There will be no infringement of an embargo imposed by the European Union, by the United States of America and/ or by the United Nations by such transfer, by brokering of contracts concerning those Goods or by provision of other economic resources in connection with those Goods, also considering the limitations of domestic business and prohibitions of by-passing those embargos.
47. If required to enable authorities or the Seller to conduct export control checks, the Purchaser, upon request by the Seller, shall promptly provide the Seller with all information pertaining to the particular end customer, the particular destination and the particular intended use of the Goods provided by the Seller, as well as any export control restrictions existing.
48. The Purchaser shall indemnify and hold harmless the Seller from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by the Purchaser, and the Purchaser shall compensate the Seller for all losses and expenses resulting thereof.
49 Notwithstanding anything to the contrary in the Contract and except to the extent required by law, the total liability of the Seller, the Seller’s personnel, the Seller’s affiliates as well as the Seller’s sub-contractors for any act or omission, whether in contract, tort (including negligence or strict liability), by way of indemnities or any other legal or equitable theory shall not exceed the contract price of the Goods;
50. The Seller shall not be liable to the Purchaser for any loss of profit (actual or anticipated), loss of use, loss of production (including loss of hydrocarbons), loss of contracts, loss of opportunities, loss of revenue, cost of capital, costs of replacement, loss of goodwill, loss of reputation, loss of information or data, loss from any third party contracts, loss due to business interruption, loss of interest, loss of power, cost of purchased or replacement power, contractual claims from third parties or any indirect, incidental, special, punitive, reliance, consequential, or other damages, including losses or damages arising from or in connection with seller’s performance or non-performance under this Contract and whether based upon contract, tort, or any other legal theory.
51. The Seller shall not be liable to the Purchaser or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to force majeure. For the purposes of this clause, force majeure shall mean any unforeseen event beyond the reasonable control of the Seller such as, but not limited to any act of God, act of government or any authorities, non-issuance of licences, hostilities between nations, war, riot, civil commotions, civil war, insurrection, blockades, import or export regulations or embargoes, rainstorms, freezing, national emergency, earthquake, fires, explosion, flooding, hurricane or other exceptional weather conditions or natural disaster, acts of terrorism, accidents, sabotages, strikes, shortages in material or supply, infectious diseases, epidemics, as well as travel restrictions or travel warnings due to any such events. If any delay in performing, or any failure to perform the Contract is caused by the delay of a subcontractor of the Seller, and is beyond the control and without the fault or negligence of the Seller, the Seller shall incur no liability for such delay.
52. Without prejudice to the other provisions of this Contract, where the force majeure continues for more than six (6) months, the Seller shall have the right to terminate the Contract. In such a situation, the Seller shall be reimbursed for Goods already performed/delivered, cost of materials or goods reasonably ordered, any other expenditure reasonably incurred in the expectation of completing the Goods as well as the reasonable cost for removal of the Seller’s equipment and demobilization of personnel.
53. The Purchaser shall not assign any of its rights or obligations under the Contract without the prior written consent of the Seller, such consent to be signed by its authorised representatives. Any attempted delegation or assignment shall be void. The Seller may attach conditions to the giving of its consent.
54. The Seller may assign any of its rights (including receivables) under the Contract without the prior written consent of the Purchaser.
55. The Seller may sub-contract the performance of the Contract or any part of the Contract without obtaining the prior consent of the Purchaser.
56. Any shipment terms quoted in relation to the delivery of the Goods shall be in accordance to Incoterms 2000 or its latest version as from time to time modified supplemented or revised.
57. The Purchaser shall comply with all relevant statutes, rules and regulations and by- laws affecting its obligations and the performance of the Contract and shall obtain at its own cost and expense all necessary permits and licences and shall furnish to the Seller, upon request, information or documentation of the Purchaser’s compliance, as well as to any other information or documentation required to enable the Seller to comply with any laws, rules, regulations and requirements applicable to its performance of the Contract.
58. Any notice required or permitted to be given by either Party to the other under these Conditions shall be in writing and signed by the authorised representatives of the Party addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified to the Party giving the notice. Notices may be delivered by email, facsimile or hand, or by prepaid registered post and shall be deemed to have been served:
(i) if by email, facsimile or hand, at time of delivery;
(ii) if by prepaid registered post, 3 working days after posting;
59. No waiver by the Seller of any breach of the Contract by the Purchaser shall be considered as a waiver of any subsequent breach of the same or any other provision. If the Seller delays, targets or chooses not to enforce its right under the Contract, it shall not affect its right to do so at a later date.
60. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part such provision shall be construed, limited or if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability and the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected but shall remain in full force and effect.
61. No terms shall survive the expiry or termination of the Contract unless expressly provided.
62. The Contract (including these Conditions) shall be governed by and construed in accordance with the laws of the Province of Ontario. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 shall be excluded to the extent allowed by law.  Each Party hereby consents to exclusive jurisdiction and venue in the Provincial or Federal Courts of Ontario, Canada to determine disputes relating to the terms and/or performance of the Contract together with all other disputes that may exist between them.
63. Nothing in these Conditions or in the specification of the Goods shall be construed to restrict or prohibit Seller from selling Goods to any other person, including persons who may compete with Purchaser.