Terms & Conditions
These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) and services (“Services”) by Omega Sign & Lighting Inc., an Illinois corporation (“Seller”), to the undersigned buyer (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms. The accompanying quotation/confirmation of sale (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services.
1. Title and Risk of Loss: Title and risk of loss passes to Buyer upon delivery and installation of the Goods to Buyer at the delivery address listed forBuyer on the Sales Confirmation. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien onand security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing orhereafter arising or acquired from time to time.
2. Buyer’s Acts or Omissions: If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission ofBuyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement orotherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from suchprevention or delay. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the SalesConfirmation, and any such dates shall be estimates only. With respect to the Services, Buyer shall (a) cooperate with Seller in all matters relating tothe Services and provide such access to Buyer’s premises, and such office accommodation and other facilities requested by Seller, for the purposesof performing the Services; (b) respond promptly to Seller’s requests to provide direction, information, approvals, authorizations, or decisionsnecessary for Seller to perform the Services; (c) provide such customer materials or information as Seller may request to carry out the Services ina timely manner; and (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Servicesbefore the date on which the Services are to start.
3. Price: Buyer shall purchase the Goods and Services from Seller at the price (the “Price”) set forth in the Purchase Order as confirmed by Seller.All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by anyGovernmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes.
4. Payment Terms: Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice (the “Invoice”). If you choose to make payment(s) by credit card, you agree to pay a 3.5% surcharge on the total amount of such payment(s). Buyer shall pay interest on all latepayments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compoundedmonthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In additionto all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall beentitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Buyer fails to pay any amounts whendue hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller,whether relating to Seller’s breach, bankruptcy or otherwise.
5. Limited Warranty: All Seller warrants to Buyer that: (a) for a period which is stated on the proposal from the date of shipment of the Goods(“Warranty Period”), that such Goods will materially conform to any specifications set forth in the Sales Confirmation.(b) Seller warrants toBuyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlikemanner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet itsobligations under this Agreement. (c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 5(a) AND 5(b) SELLER MAKES NOWARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (A) WARRANTY OFMERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D)WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS ORIMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. (d) Productsmanufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packagedtogether with, the Goods. Third Party Products are not covered by the warranty in Section 5(a). For the avoidance of doubt, SELLER MAKESNO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D)WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS ORIMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. (e) The Sellershall not be liable for a breach of the warranties set forth in Section 5(a) and Section 5(b) unless: (i) Buyer gives written notice of the defectiveGoods or Services, as the case may be, reasonably described, to Seller within 15 days of the time when Buyer discovers or ought to havediscovered the defect; and (ii) Seller reasonably verifies Buyer’s claim that the Goods or Services are defective. (f) The Seller shall not be liable for abreach of the warranty set forth in Section 5(a) or Section 5(b) if: (i) the defect arises because Buyer failed to follow Seller’s oral or writteninstructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (ii) Buyer alters or repairs such Goodswithout the prior written consent of Seller. (g) Subject to Section 5(e) and Section 5(f) above, with respect to any such Goods during the WarrantyPeriod, Seller shall, in its sole discretion, repair or replace such Goods (or the defective part). (h) Subject to Section 5(e) and Section 5(f) above, withrespect to any Services subject to a claim under the warranty set forth in Section 5(b), Seller shall, in its sole discretion, repair or re-perform theapplicable Services. (i) THE REMEDIES SET FORTH IN SECTIONS 5(g) AND 5(h) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH IN THESE TERMS.
6. Limitation of Liability: IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHERREMEDY OF ITS ESSENTIAL PURPOSE. (b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATEDTO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS BUYER PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
7. Waiver: No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. Nofailure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, asa waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof orthe exercise of any other right, remedy, power, or privilege.
8. Force Majeure: Except for Buyer’s obligation to pay Seller, neither party shall have liability from delay in performance caused by circumstancesbeyond its control, including but not limited to acts of God, fire, flood, ice storm, earthquake, explosion, war, government action, civil disturbance,labor trouble or shortage, strike, sabotage, epidemics, accident, or inability to obtain material, equipment or transportation, equipmentmalfunction or failure.
9. Assignment: Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent ofSeller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of itsobligations under this Agreement.
10. Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in this Agreementshall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationshipbetween the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
11. No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assignsand nothing herein, express, or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, orremedy of any nature whatsoever under or by reason of these Terms.
12. Governing Law: All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws ofthe State of Illinois without giving effect to any choice or conflict of law provision or rule.
13. Submission to Jurisdiction: Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in thefederal courts of the United States of America or the courts of the State of Illinois in each case located in the County of DuPage, and each partyirrevocably submits to the exclusive jurisdiction of such courts in any such
suit, action, or proceeding.
14. Notices: All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall bein writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may bedesignated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all feespre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid).Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Noticehas complied with the requirements of this Section.
15. Severability: If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, orunenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provisionin any other jurisdiction.
16. Survival: Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expirationof this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, GoverningLaw, Submission to Jurisdiction and Survival.
17. Amendment and Modification: These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
This Agreement is a complete integration and final expression of the agreement between the parties, and may not be amended, supplemented, or otherwise modified except by written agreement executed by authorized representatives of each.
1. Title and Risk of Loss: Title and risk of loss passes to Buyer upon delivery and installation of the Goods to Buyer at the delivery address listed for
hereafter arising or acquired from time to time.
before the date on which the Services are to start.
whether relating to Seller’s breach, bankruptcy or otherwise.
WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (A) WARRANTY OF
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.
malfunction or failure.
obligations under this Agreement.
remedy of any nature whatsoever under or by reason of these Terms.
suit, action, or proceeding.
has complied with the requirements of this Section.
in any other jurisdiction.
Law, Submission to Jurisdiction and Survival.