Optima Communications Systems, Inc.
Terms & Conditions
I. GENERAL PROVISIONS
1. Agreement:
Subject to the additional terms and conditions set forth herein, Seller (Herein referred to as seller and Optima) agrees to sell to Buyer (Herein referred to as Buyer, Customer and Client) and Buyer agrees to purchase from Seller the Equipment (“Equipment”) described on the Equipment order.
2. Coverage:
Optima and client agree that the following terms and conditions will govern customers order for equipment, software, wiring, remote support/programming and installation services. All orders for products or services become effective when signed by the customer. Any other terms and conditions, preprinted, verbal or otherwise, accompanying any customer order for Products or Service are hereby rejected and shall have no legal effect notwithstanding Optima’s acceptance or use of any such order.
3. Contract Period:
This Agreement will become effective when it is signed by Customer and accepted by Optima and will remain in effect until terminated or cancelled as provided herein by either the Customer or Optima. The warranty commencement date will begin when the equipment is delivered to the clients installation address or address where the customer requests the equipment be shipped. Optima may, but shall not be required to commence the installation of the system until customer credit is approved by an officer of Optima and or Avaya Financial Services or other financing entity, and a site review of the customer’s premises have been made by Optima’s technical personnel.
4. Right to Terminate:
Optima reserves the right to terminate this agreement, in its sole discretion, based upon its review and/or its site review or for any reason including but not limited to rejection of order based on price/margin, unforeseen installation challenges including union issues or additional wiring required and payment disputes.
5. Customer Obligations for Installation:
Optima will install the products for which installation charges are shown. Customer accepts, at their expense, upon the signing of this agreement, and at all other times during the period of installation and maintenance services: (A) Allows employees or agents of Optima access to the premises and facilities where the equipment is to be installed at all hours consistent with the requirements of the installation. (B) Assures that the Premises will meet all temperature, humidity control, air conditioning and all other environmental requirements for any and all equipment purchased and supplied by Optima and will be dry and free from dust and other hazards so as not to be injurious to persons and/or to the equipment to be installed. (C) Provide all patching, painting, concrete, and other openings, conduit, floor reinforcements or other mechanical modifications pertinent to this installation (D) Provide ample electric current and electrical support and backup of proper voltage for any necessary purpose, terminating in rooms where it is required (D) Provides suitable and easily accessible space for secure storage of the equipment, any tools, test sets and other items necessary for installation (E). Optima shall deliver and install the equipment at the premises specified on the order and Customer agrees to accept delivery and to permit Optima access to the premises as Optima shall require for the purpose of installing the equipment. (F) Any installation delays due to lack of customer fulfilling obligations as described above will result in additional charges based on Optima contract/warranty rate schedule as described in this agreement. Charges will apply to the real time lost by Optima personnel including travel time and time on site. (G) The risk of loss for any damage to or destruction of the Equipment or any portion thereof from and after the time of delivery thereof to the premises shall be on Customer/ Buyer, except with respect to damage or destruction resulting from the negligence or willful conduct of Optima/Seller.
6. RIGHT TO HIRE:
Optima is the employer and representative of all personnel dispatched to the buyer’s premise for installation of purchased equipment from Optima. Accordingly, buyer agrees that if any Optima employee is hired either directly or indirectly by buyer within one hundred eighty (180) days of employees last on site date at buyer’s premise, Buyer agrees to pay to Optima liquidated damages an amount equal to 23% of the employees annualized first year salary, including guaranteed bonuses.
7. Change Orders:
Customer requests for any change to the equipment, software, wiring or installation/labor will be billed at the same rate as charged on original order for equipment unless otherwise noted on order. Additionally, all installation/labor charges will be billed at Optima’s service labor contract/warranty rate schedule (available upon request). Any and all extra expense attributable to such change orders such as freight shall be the responsibility of the client and will be invoiced/charged to customer credit card or added to customers lease. All changes & additions shall be subject to all terms and conditions provided herein.
8. Shipment and Use:
Products may only be acquired by Customer for installation and shipment to locations within the United States. Customer agrees and warrants that the products acquired hereunder are for use in the ordinary course of customer’s business in the United States.
9. Payment:
Customer agrees to pay in full all amounts due under this agreement. Payment terms for new orders are as follows: 50% deposit, 30% upon delivery or shipment of the equipment and 20% upon cutover. Optima accepts the following forms of payment: Visa, MasterCard, and American Express, Discover, bank wire or company check or financing via Avaya Financial Services. If customer is paying by credit card, Optima will charge the amounts provided herein and obtain an “auth only” for the balances. The balance(s) shall be automatically charged at the time of the trigger event. Any and all costs associated with credit card charges after ordering of/ installation/delivery of equipment become the full responsibility of the customer. This is inclusive but not limited to finance charges, chargeback fees, arbitration costs and interest on late balances. If customers financing the equipment with Avaya Financial services, Optima may, at its discretion, submit all lease docs for funding on the entire amount of the lease when the equipment is ordered and shipped to the customer. Optima may require all lease docs, including credit application, lease agreement and Delivery and Acceptance to be signed prior to the shipment of equipment and scheduling of installation. For customer paying with company check or bank wire, Optima may, at its discretion, wait for a company check to clear before scheduling installation or shipping equipment. If customer is paying the final balance by company check or bank wire, Optima may, at its discretion, require final payment to be paid with a certified check or money order, or require the customer to provide a credit card authorization until the check clears. If upon cutover customer does not provide required payment, Optima reserves the right to de-install the equipment and wiring. In such case Optima will not be required to refund the customers deposit or any monies received as part of this agreement. For all orders that are ship only with no installation/labor services, full payment is required prior to order being shipped unless otherwise approved by Optima. For any services or change orders done on the initial installation (wiring, additional labor, jacking, toning or additional equipment or software) Optima will invoice customer, charge to credit card on file, or add to customers lease immediately upon change order being signed by customer. Optima may invoice customer for late payment charges for payments not received when due. Late payment charges will be computed at the rate of one and one half percent of the overdue amount per month or the maximum lawful amount, whichever is more. Customer will also be liable for all costs incurred in the collection of any past due amount, including any collection agency or attorney’s fees. Optima and customer agree that should legal action be required by Optima to obtain any monies from customer that Optima will pursue legal action in The State of New York and customer must defend claim in State of New York. Customer agrees that if a countersuit is filed by customer against Optima it is filed in the State of New York.
10. Cancellation Charge:
If all or a portion of this agreement or any subsequent order is cancelled by customer prior to the scheduled installation date (or prior to the date of delivery for customer installed products) except as otherwise provided in this agreement, customer agrees to pay a cancellation charge equal to 20 percent of the total purchase price of the cancelled order, excluding installation/labor charges plus any freight or delivery charges. The customer agrees that the cancellation charge is not a penalty but constitutes liquidated damages for losses incurred by Optima as a result of the cancellation. For all products and licenses that Optima can not return to their respective distributors, the cancellation charge may be more, up to 75% depending on the product and terms of Optima’s distributors and other factors. Additional fees may apply if equipment is not returned in sealed boxes and thus can not be resold to another customer as new equipment. In such cases where the equipment is not in the original sealed boxes or customer wishes to return already installed equipment, Optima will refund an amount to be determined by Optima management, at Optima’s sole discretion. No equipment can be returned, for any reason after 30 days of delivery or installation, whichever is less unless delay is fault by seller. No credit will be given until equipment is received and inspected by Optima.
11. EXISTING AGREEMENTS:
In providing equipment or services, Unless otherwise noted on order, Optima is not liable or responsible with regard to any fees or other expenses relating to the termination of the Buyer’s existing agreements. It is the Buyer’s responsibility to terminate any and all existing agreements in place. This includes but not limited to equipment leases, network services, and maintenance agreements. Buyer is solely responsibly with regard to its existing contracts or associated termination charges without reimbursement from Optima.
12. Taxes:
Prices, fees and charges shown on the order may not include sales tax. If applicable, customer agrees to pay when invoiced all applicable taxes, however designated, including without limitations state and local sales and use taxes, imposed on the provision, sale, license or use of the Products or Services provided hereunder.
13. Trade Ins:
If product purchase price is inclusive of consideration for equipment traded-in by the Customer (“Trade-in Equipment”), title to the Trade-in Equipment shall transfer to Optima immediately upon delivery, and Optima may sell or otherwise dispose of such Trade-in Equipment at any time and in any manner. Optima is not required to retain or reserve Trade-in Equipment for any period of time for possible return to the Customer. In the event that this Agreement is cancelled by Optima or the Customer, Optima shall not be obligated to return the Trade-in Equipment.
14. Service rates for warranty and service contract customers:
For on-site adds, moves and changes (moving of jacks, adding new jacks, vendor meets) Optima provides on-site service at the standard time rate of $149 per hour plus $59 premise visit fee between 8 a.m. and 6p.m, Monday through Friday, excluding holidays. On-site service or maintenance requested after hours, on holidays or over the weekend will be billed at a rate of $223.50 per hour during the warranty period and for customer’s with a service contract, plus a $115 premise visit fee. Optima will perform up to one hour of additional remote post installation support/programming changes at no cost to customer for all new full system installations. Any time spent for support/programming changes past 1 hour will be billed at $60 for each 30 minute session. All rates are labor only and all materials will be billed separately.
15. Service rates for customers who are not under warranty and do not have a service contract
If customer is not under a labor warranty/service contract, the labor rate is $199.00 for the 1st hour and $199 for each additional hour. This applies for all add, moves, changes and maintenance performed by Optima. There is a one hour minimum and the time spent past the 1st hour will be billed in 15 minute increments. Optima will also charge a premise visit fee of $59.00. All rates are labor only and all materials will be billed separately. On-site service or maintenance requested after hours, on holidays or over the weekend will be billed at a rate of $298.50 per hour during the warranty period and for customer’s with a service contract, plus a $115 premise visit fee. Optima will perform up to one hour of additional remote post installation support/programming changes at no cost to customer for all new full system installations. Any time spent for support/programming changes past 1 hour will be billed at $60 for each 30 minute session. All rates are labor only and all materials will be billed separately.
16. Limited Warranty:
Optima warrants to customer that Products, including wiring installed by Optima be in good working order on the date Optima delivers or installs the Product, whichever is later. If customer notifies Optima that the product is not in good working order within the standard warranty period specified for the product on the date of purchase, Optima will without additional charge, repair, or replace, at Optima’s discretion, the product components that are not in good working order. Optima may replace equipment covered under warranty with refurbished equipment equivalent to new in performance. Repair or replacement parts may be new, remanufactured or refurbished at the option of Optima and will be provided on an exchanged basis. Optima’s obligations under this Limited Warranty are, contingent on customer’s full payment of the product purchase price. Optima will not replace any equipment under warranty if the customer has any open invoices. Optima’s obligation to repair or replace as set forth above is customer’s exclusive remedy. Except as specifically set forth above, Optima and its affiliates and suppliers make no warranties, express or implied, and specifically disclaim any warranties or merchantability or fitness for a particular use.
17. Force Majeure:
Optima shall have no liability for damages due to fire, explosion, power failures, strikes, or other labor disputes, water, acts of God, war or the engagement by the United States in hostilities civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials or transportation facilities, fuel or energy shortages, acts or omissions of communications carrier telecommunications services.
18. Choice of Law:
The construction, interpretation and performance of this Agreement shall be governed by the local laws of the State in which the Product is delivered to the Customer or the Services rendered to the customer.
19. Assignment/Subcontracting:
This Agreement is not assignable by Customer without prior written consent, which consent will not be unreasonably withheld. Optima may subcontract all or any part of the Services to be performed by it under this agreement without the Customer’s consent.
20. Optima Service Level Agreement:
Warranty customers can call in to our toll free number, 24 hours a day, seven days a week. Most programming changes and service problems can and will be handled remotely without the need for an on site visit, making the process faster and more efficient than scheduling an appointment for a tech to come on site. Most systems we install are set up with remote access (unless customer does not allow access) so most changes and issues that come up, Optima can handle in house. In cases where remote access is denied by the end user, or customer is outside of the first year labor warranty period, standard labor rates apply as described in the services rates portion of this agreement.
21. Full or partial Service Outage:
Once a technician has determined the nature of the problem, he or she will first try to correct the trouble remotely by accessing your system configuration. If the problem cannot be fixed remotely, a service call will be scheduled. If the phone system is in failure causing a severe disruption in business, the guaranteed response time for a tech to arrive on site is 4 hours from determination of the issue, unless equipment is required which in some cases may delay the response time. If the problem is a minor system issue, (less than 25% of the phones are not operational or for programming changes/problems that cannot be resolved remotely for any reason that is not impeding on the customers ability to run their business) a 48 hour response time will be guaranteed. Note that even for “minor” issues we strive to respond immediately to all requests.
22. Five Year Parts Warranty:
For customer who elect for a 5 year Parts only warranty, the warranty is on all Avaya IPO equipment – This excludes: headsets, wireless phones, paging equipment (horns and amplifiers), batteries, UPS and surge protectors and any other non-Avaya equipment or software installed. Warranty on such items is one year only. Once Optima personnel have determined a piece of equipment is faulty, an ADVANCED REPLACEMENT will be sent. A return authorization form will be faxed or emailed to the client in whom the client will sign and fax back. The RMA form states that the customer must return the non-working equipment within 15 days or the price of the replacement equipment will be billed to the client, added to customers lease or charged to customer credit card. Once the return authorization form is received, Optima will ship the equipment from our Irvington Warehouse or from another source at Optima’s discretion. All replacements will be either new or refurbished at Optima’s discretion. Since we only service one brand of equipment, Optima has a large inventory of Avaya equipment on site as well as access to our distributor where over $500 million in Avaya equipment is stored. Optima maintains over $5 million in equipment in our NY warehouse/lab at all times ensuring timely replacement of equipment
23. Five Year Parts and Labor Warranty:
For customers who elect for a 5 year parts and labor warranty, all terms and conditions of the 5 year parts only warranty will be in effect with the addition of the labor for Optima to come on-site to install equipment or software that needs to be installed. There will be no charge for this service. If the faulty equipment is a phone or other part that can be “self-installed” or “plug and play” Optima will not dispatch an installer and will instead ship the part and if necessary walk the customer through the process over the phone. Software updates, IPOSS coverage and remote support are not included with the 5 year parts and labor warranty. These services can be purchased for the standard rates as outlined in section 15 of this agreement ($60 for 30 minutes of remote support). Software updates will be priced in accordance with Optima’s standard price schedule.All calls and service issues are handled promptly as service is our business and you, the client are the reason we are in business. If at any time you feel you are not being serviced to your satisfaction, please do not hesitate to call your sales person or project manager to discuss the issue. We pride ourselves on servicing our contract customers and want to know if we are falling short in any way.
OPTIMA SERVICE CONTRACT PLAN TERMS AND CONDITIONS:
Optima and you, the Customer, agree that the following terms and conditions will apply to post-warranty service contracts.
1. CUSTOMER RESPONSIBILITIES:
You agree to provide the proper environment, electrical and telecommunications connections and provide access to the work space during and after normal business hours. Optima shall not be liable to you as a result of such delays caused by failure of customer to provide access to the space as described above. Customer agrees that if remote access to system was granted at time of installation or commencement of support agreement it will remain available for the duration of the support agreement. If changes to remote access are made by customer including, but not limited to, new dial in access numbers, IP addresses, security procedures, or hardware, customer agrees to notify Optima of such changes and customer understands that failure to do so may hinder Optima’s ability to provide timely service under the support agreement. If remote access is unobtainable due to customer provided equipment and an onsite service call is required as a result, Customer is responsible to pay Optima’s on site labor rate as described in section 15 of the terms and conditions agreement.
Due to hackers constantly changing methods, Optima is in no way liable for any toll fraud/unauthorized access to clients phone systems/routers/firewalls.
2. Optima’s responsibilities:
Optima will provide Services during the Contract Period in accordance with Optima’s standard specifications subject to the exclusions set forth in this Section. Post-warranty service includes preventive maintenance as deemed appropriate by Optima and remedial maintenance, including replacement parts required for Products used under normal operating conditions.
If you subsequently purchase products from Optima, those added products will be automatically added to this agreement at the expiration of the warranty period. Added Products purchased from a party other than Optima are subject to certification by Optima at Optima’s then current rates for such certification; post-warranty service coverage will be effective immediately after Optima certifies the added products. Charges for added products will be at the then current rate and coverage will be coterminous with the coverage for the existing products.
3. Equipment replacement:
Once Optima personnel have determined a piece of equipment is faulty, a return authorization form will be faxed or emailed to the client in whom the client will sign and fax back. The RMA form states that the customer must return the non-working equipment within 15 days or the price of the replacement equipment will be billed to the client, added to customers lease or charged to customer credit card. Once the return authorization form is received, Optima will ship the equipment from our Irvington Warehouse or from another source at Optima’s discretion. All replacements will be either new or refurbished at Optima’s discretion. Because we only service 1 brand of equipment, Optima has a large inventory of Avaya equipment on site as well as access to our distributor where over $500 million in Avaya equipment is stored. Optima maintains over $5 million in equipment in our NY warehouse/lab at all times ensuring timely replacement of equipment. In cases where replacement equipment is not readily available, Optima will replace equipment with a comparable model until such equipment is available. If Optima is unable to locate exact or comparable equipment Optima will refund the customer the contract cost of said equipment. Refund will be automatically deducted from customer’s next contract invoice.
4. Monitoring of system:
Optima may, at its discretion, electronically monitor your system for the sole purpose of collecting and recording the configuration of and the number and kinds of products in your system. Such monitoring will serve two principal purposes: (1) the information will permit more accurate remote diagnostics and correcting actions; and (2) the information will be used once a year, before the renewal date of any Service Agreement, or the annual anniversary date of a multi-year Agreement, to determine applicable charges. Products identified in the annual data collection will be treated as Added Products under Section 2. You will cooperate with Optima in such data collection, including making remote access available to Optima for this purpose.
5. Service Exclusions:
All Warranty and post-warranty service contracts do not cover repair for damages, or malfunctions, or performance characteristics caused by: (1) use of non-Optima furnished equipment, software, or facilities with the Product(s); (2) your failure to follow Optima’s installation, operation or maintenance instructions, including your failure to permit Optima timely remote access to your Product(s); (3) failure or malfunction of equipment, software, or facilities not serviced by Optima; (4) actions of non-Optima personnel; or (5) force majeure. Optima does not warrant uninterrupted or error free operation of the Product(s). In addition, Optima is not obligated to provide warranty or post-warranty service if you modify the Product(s). If you request, Optima will perform repair or other services not covered by this Agreement to your Optima Product(s) at Optima standard rates for such service as detailed in section 15 of this agreement.
6. Limitations on fraudulent intrusion:
Although Optima’s products are designed to be secure, Optima makes no express or implied warranty that Products are immune from or prevent fraudulent intrusion, unauthorized use or disclosure or loss of proprietary information. Certain features, if purchased, such as Password Reset, Conference Mailbox, Skip Password and Monitor Mailbox, when enabled, could be improperly used in violation of privacy laws. By ordering Products with these features or separately ordering such features, you assume all responsibility for assuring their proper and lawful use.
7. Moving of products covered under a Service Contract/Security measures:
You agree to notify Optima prior to moving a Product. Additional charges may apply if Optima incurs additional costs in providing warranty or post-warranty services as a result of a move of a Product. If the Product supports Telephony over Transmission Control Protocol/Internet Protocol (TCP/IP) facilities, you may experience certain compromises in performance, reliability and security, even when the Product performs as warranted. These compromises may become more acute if you fail to follow Optima’s recommendations for configuration, operation and use of the Product. YOU ACKNOWLEDGE THAT YOU ARE AWARE OF THESE RISKS AND THAT YOU HAVE DETERMINED THEY ARE ACCEPTABLE FOR YOUR APPLICATION OF THE PRODUCT. YOU ALSO ACKNOWLEDGE THAT, UNLESS EXPRESSLY PROVIDED IN ANOTHER AGREEMENT, YOU ARE SOLELY RESPONSIBLE FOR ensuring that your network and access, whether remote or on site, are secure and backing up your data.
8. PRICE AND PAYMENT:
Optima invoices service contracts that are under $250.00 per month quarterly. For contracts that exceed $250.00 per month, Optima will invoice monthly. You agree to pay the charges set forth in the Agreement to the invoicing party. Payment of invoices is due within thirty (30) days from the invoice date. Late payment charges will be computed at the rate of one and one half percent of the overdue amount per month or the maximum lawful amount, whichever is more. Customer will also be liable for all costs incurred in the collection of any past due amount, including any collection agency or attorney’s fees. Optima and customer agree that should legal action be required by Optima to obtain any monies from customer that Optima will pursue legal action in The State of New York and customer must defend claim in The State of New York. Customer agrees that if a countersuit is filed by customer against Optima it is filed in The State of New York. You agree that all billing and invoices shall be sent to the address provided on the face of this agreement. Customer’s billing address can only be changed by Customer upon a duly executed writing by Customer requesting a change of billing address. . If customer is paying by credit card, Optima will charge the amounts provided herein. The balance(s) shall be automatically charged at the time of the trigger event. Any and all costs associated with credit card charges after ordering of/ installation/delivery of equipment become the full responsibility of the customer. This is inclusive but not limited to finance charges, chargeback fees, arbitration costs and interest on late balances.
9. Renewal Policy:
The service contract will be automatically renewed for the same period of time as the original agreement unless Optima receives written notice from customer stating customer’s intent not to renew. All notices not to renew must be in writing and mailed to Optima via Certified US mail, return receipt requested within thirty days of the contract renewal date. Optima will automatically bill customers credit card on file, mail customer invoice or charge renewal amount to customers lease. Standard maintenance contracts are a 1 year term.
10. Limitations of Liability:
EXCLUSIVE REMEDIES & LIMITATIONS OF LIABILITY —
(A). The entire liability of Optima Communications Systems, Inc. and its Subsidiaries, Affiliates and Subcontractors (and the Directors, Officers, Employees, Agents, Representatives, Subcontractors and Suppliers of any and all of them) and your Exclusive remedies for any damages caused by Any product defect or failure, or arising from the performance of any work or service, regardless of the form of action, whether in contract, tort including negligence, strict liability or otherwise, shall be: (1) For Failure of products during the warranty period, the remedies stated in Section 3. (2) Optima Communications Systems, Inc. failure to perform any stated material term of this agreement your sole remedy shall be to terminate this agreement without incurring cancellation charges if Optima Communications Systems, Inc. fails to correct such failure within thirty (30) days of receipt of your written notice, notwithstanding such termination, you shall be obligated to pay for any performance or products provided by Optima Communications Systems, Inc. rendered prior to termination, (3) For damages to real or tangible personal property or for bodily injury or death to any person for which Optima Communications Systems, Inc.’s sole negligence or willful misconduct was the proximate cause, your right to proven damages to property or person; and (4) For claims other than set forth above, , Optima Communications Systems, Inc.’s liability shall be limited to proven direct damages in an amount not to exceed the price of service giving rise to the liability or $1,000,000, whichever amount is less.
(B). Except to the extent provided in Subsection 11A, Optima Communications Systems, Inc. shall NOT be liable for the following types of damages: (1) Indirect or Incidental damages (2) Special or consequential damages, including but not limited to lost profits, savings or revenues of any kind, lost , corrupted, misdirected or misappropriated data or messages, and charges for common carrier telecommunication services or facilities accessed through or connected to products (‘toll fraud’).
11. In some cases, Optima will search for a leasing/financing company that will approve the customer without having the customer sign individual credit applications for each potential lease/finance company.
12. CANCELLATION/TERMINATION:
After commencement of any initial or renewal term of post-warranty service, you may terminate Service coverage upon thirty (30) days written notice. Notice must be in writing and sent via certified mail, return receipt requested. No cancellations will be accepted either verbally or in writing unless notice is mailed as stated above. You may provide notice to terminate the Agreement subject to a termination charge equal to the monthly charges for six (6) months. The customer termination right applies to the entire agreement.
If you fail to perform any material term or condition of this Agreement (e.g., fail to pay any charge when due) and such failure continues for thirty (30) days after receipt of written notice, you shall be in default and Optima may terminate this Agreement and exercise any available rights. Upon termination by Optima, you shall be liable for cancellation and/or termination charges and any other applicable charges.
13. FORCE MAJEURE:
Optima shall have no liability for delays, failure in performance or damages due to: fire, explosion, power failures, pest damage, lightning or power surges strikes or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials, transportation facilities, fuel or energy shortages, performance or availability of communications services or network facilities, unauthorized use of the Products, or other causes beyond Optima’s control whether or not similar to the foregoing.
14. ASSIGNMENT:
Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. However, Optima may assign this Agreement to a present or future affiliate, subsidiary, successor or distributor or may assign its right to receive payment without your consent.
15. SUBCONTRACTING:
Optima may subcontract work to be performed under this Agreement, but shall retain responsibility for the work.
16. GENERAL:
A. Any supplement, modification or waiver of any provision of this Agreement must be in writing and signed by authorized representatives of both parties. If either party fails to enforce any right or remedy available under this Agreement, that failure shall not be construed as a waiver of any right or remedy with respect to any other breach or failure by the other party. You certify that the Services acquired hereunder are intended for your use in the ordinary course of your business and not for the purpose of resale.
This Agreement shall be governed by the local laws (as opposed to the conflict of law provisions) of the State of New York.
THIS AGREEMENT IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS, COMMUNICATIONS BETWEEN THE PARTIES AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.