TOS

TERMS AND CONDITIONS OF SALE (January 7, 2016)

This Terms and Conditions of Sale Agreement (“Agreement”) constitutes a binding legal contract between you (“Customer” or “you”) and OmniSource Marketing Group, Inc. (“OmniSource” or “we” or “us”). By ordering any product or service from us, you signify your acceptance of this Agreement, as it may be amended or supplemented from time to time without prior notice. Changes to this Agreement will be effective when posted on www.OmniSourceMarketing.com or www.omni.cc. If you use any websites or portals owned or operated by OmniSource, such use is also subject to additional Terms of Use, which can be viewed on that particular website or portal.
 
Pricing: Prices are quoted in U.S. Dollars. Unless otherwise specified, prices do not include shipping and handling, expedited service, samples, setup charges, art charges, change orders, and applicable taxes, which will be added to your total invoice price. As is customary in the promotional products industry, custom orders are subject to overruns or underruns of up to 10%, and the invoice will be adjusted accordingly. Unless you have prearranged payment terms with OmniSource, payment is due upon receipt of invoice, and OmniSource may at its sole discretion require a pre-payment or deposit before processing your order. Returned checks will result in a $35 a non-sufficient funds (NSF) fee. All orders paid by credit card are pre-authorized at the time of order and will be charged at time of shipment or will be charged a 3% financing fee. Invoices not paid within 30 days from due date will accrue finance charges of 1.5% per month on the balance due.  

Taxes: The amount of any present or future sales, revenue, excise or other taxes, applicable to the goods and services sold by us to you shall be added to the purchase price and shall be paid by you, or in lieu thereof, you shall provide us with a tax exemption certificate acceptable to the applicable taxing authorities.

Product Display and Descriptions: We make every effort to display and describe items as accurately as possible. Please note, however, that the display and color capabilities of your particular computer monitor will greatly affect the colors and textures seen on a computer screen, and two-dimensional art renderings on paper might differ from the actual final product. We are glad to offer PMS color-matching, art renderings or pre-production samples upon your request (additional charges may apply).

Trademark/Copyright Notice: Unless otherwise explicitly stated, the artwork, designs and trademarks imprinted on the products displayed on any website, email or other medium owned or operated by us, are reproduced for illustrative purposes only as examples of the type and quality of branded merchandise available; they are not intended to represent that the products are either endorsed by, or produced for the owners of the artwork, design or trademark.

Use of any third party mark is restricted to authorized persons, employees and agents performing work for or on behalf of the mark owner, or its authorized agents or suppliers, in connection with that mark owner’s business. Nothing herein shall be deemed to confer upon you any license or right to use any third party’s trademarks, service marks, trade names, designs, logos and images.

All trademarks, service marks, trade names, designs, logos, images and copyrights which identify OmniSource are proprietary marks of and owned by OmniSource. Nothing herein shall be deemed to confer upon you any license or right to use OmniSource’s trademarks, service marks, trade names, designs, logos and images.

License Grant, Representation and Warranty as to Customer Content: For purposes of this Agreement, the word, “Customer Content” shall mean any trademark, service mark, trade name, design logo, text, image or picture that can be printed on any product, or displayed electronically on any medium, by us at your request, whether it is provided directly by you, created by us at your request, or otherwise. 

OmniSource does not claim ownership rights in any Customer Content; provided, however, original designs that are created by us are deemed to be the exclusive property of OmniSource unless rights to those designs are granted under a separate, written agreement. OmniSource will not create or use any Customer Content or other intellectual property in cases where OmniSource has actual knowledge that such creation or use will infringe on the intellectual property rights of any third party. In all cases, however, you represent by placing any order (and bear the sole responsibility for ensuring) that all Customer Content, regardless of the source, does not infringe the intellectual property rights of any third parties; OmniSource does not and will not make such warranty or representation.

In order to enable us to print or display the Customer Content on sample merchandise, proofs, marketing materials and websites, and to fulfill any orders for you, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, you hereby grant to OmniSource a perpetual, worldwide, non-exclusive, assignable, royalty-free license to use, copy, distribute and display the Customer Content. You further represent and warrant that you have all rights necessary to grant us such license, including but not limited to any trademark, copyright, personality, publicity, moral or like right throughout the world and that the Customer Content does not violate or infringe upon the rights (including intellectual property rights, privacy, moral or publicity rights) of any third party.

You agree to indemnify, defend and hold harmless OmniSource and its officers, trustees, employees, volunteers, agents, representatives, and the heirs, executors, administrators and successors of each of them, from and against any and all actions, causes of action, suits, claims, proceedings, investigations, inquiries, and demands of whatsoever nature or kind, as well as from and against any and all damages, liabilities, losses, costs, charges and expenses, including reasonable legal counsel fees (collectively, “losses”) resulting therefrom, that may be brought or made by whomsoever, or suffered, directly or indirectly, by reason of or in any way arising out of or in connection with (a) any negligent act or omission or willful misconduct by you or your officers, directors, members, employees, volunteers, agents, affiliates, representatives and subcontractors in connection with the provision of the Customer Content to us under this Agreement or in connection with our fulfilling an order or request from you regarding any product or service containing the Customer Content; (b) any breach by you of any provision of this Agreement; and (c) any claim that Customer Content infringes a patent, trademark, copyright, trade secret right or other intellectual property right worldwide, including without limitation any and all personality, publicity, moral or like right throughout the world.
 
Order Status: By placing an order with us, you consent to receive email from us regarding your order. After placing an order, you must notify us via email at clientcare@omni.cc within twenty-four (24) business hours of any order questions, changes, cancellations or inaccuracies; absent such notification, you agree that any information contained in the order shall be deemed correct. Bad addresses, addresses changes or delivery refusals may result in an additional charge. If you would like a pre-production sample or proof, you must specify such request with your order, and such sample or proof may result in an additional charge. In certain instances (such as large orders or custom designs), we may request your additional approval, and any delay in responding to such request may delay your order. When your order ships (or, in the case of multiple shipments, when the last part of the order ships), you will receive via email a tracking number. If you have any questions about your order, please email us clientcare@omni.cc and include your order number in all correspondence.

Shipping: Unless otherwise specified in writing by OmniSource all orders are FOB point of shipment; therefore, freight and insurance costs are Customer’s responsibility. We shall not be liable for any failure to deliver goods where such failure has occurred due to circumstances beyond our control.

Gift Cards and Purchase Cards: From time to time, OmniSource may offer, sell or distribute gift cards or purchase cards issued by third parties (collectively referred to herein as a “gift card”), whether as a part of a promotional program for you or otherwise. The sale or distribution of gift cards are subject to shipping, handling and/or service fees. Protect and treat all gift cards as you would cash; we will not replace lost or stolen gift cards. USE OF ANY GIFT CARDS PURCHASED FROM OR DISTRIBUTED THROUGH OMNISOURCE IS SUBJECT TO THE TERMS AND CONDITIONS OF USE OF THE GIFT CARD AS SET FORTH BY THE ORIGINAL ISSUER OF SUCH GIFT CARD. It is your responsibility to obtain and review such terms and conditions before ordering such gift card from OmniSource, and you agree to release and hold harmless OmniSource from any damages or liability whatsoever in connection with or arising from any gift card provided by or through OmniSource.

Returns: Your satisfaction is important to us. Therefore, subject to the terms and conditions contained herein, if you are not completely satisfied with your purchase, you can request an account credit, product replacement or a refund for product returns within 30 days of the invoice date or delivery date, whichever is later. However, unless defective, all orders for and sales of custom items (including any item containing logos or imprints) are final.  

A return authorization number is required for all returns and must be requested within 30 days of the invoice date or delivery date, whichever is later. All such items must be returned in the original manufacturer’s packaging along with all parts, accessories and paperwork. Modified, altered, worn, damaged or abused products or garments are not returnable. Shipping expenses for non-defective items will be borne by purchaser. For defective products, we will issue a prepaid return authorization, and we will issue the related credit or refund or send out the replacement product upon our receipt of the defective items. To request a return authorization number, please email clientcare@omni.cc, and include your order number with your correspondence.  

Damages & Shortages: You should inspect merchandise for damages and shortages before signing for delivery or relocating. Claims for damages and for shortages in excess of permitted underruns must be reported within 5 business days of delivery via email to clientcare@omni.cc. The shipper will arrange for pick up of the item, and a replacement will be sent upon our receipt of the damaged product.

Disclaimer of Warranties: YOU HEREBY WAIVE ALL OTHER REMEDIES, WARRANTIES, GUARANTEES OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WHETHER OR NOT OCCASIONED BY THE NEGLIGENCE OF OMNISOURCE. YOU ACKNOWLEDGE BY YOUR USE OF ANY PRODUCTS PROVIDED BY US THAT YOUR USE OF THE PRODUCTS AND ANY RELIANCE UPON THEM IS AT YOUR SOLE RISK, AND THAT YOU ASSUME FULL RESPONSIBLIITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH OUR PRODUCTS. OMNISOURCE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES SO THESE LIMITATIONS MAY NOT APPLY TO YOU. THE WARRANTIES SET FORTH HEREIN GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. IF AN ITEM HAS BEEN PURCHASED FOR CONSUMER USE AS DEFINED BY 15 U.S.C. § 2301, ANY IMPLIED WARRANTY OR WARRANTIES SHALL EXPIRE ON EXPIRATION OF ANY EXPRESS WARRANTY.

Waiver and Limitation of Liability: OMNISOURCE HAS PRICED ITS PRODUCTS UPON THE UNDERSTANDING, AND YOU HEREBY ACKNOWLEDGE THE UNDERSTANDING, THAT OMNISOURCE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FORM OF CONSEQUENTIAL, INCIDENTAL, STATUTORY, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES OF WHATEVER KIND OR TYPE ARISING FROM ANY TYPE OF COMMERCIAL, BUSINESS, ENVIRONMENTAL, TORT, WARRANTY, CONTRACT, STRICT LIABILITY OR OTHER CAUSES ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY PRODUCT AND/OR ITS USE, EXCEPT USE AS DEFINED BY 15 U.S.C. § 2301. IN NO EVENT WILL OMNISOURCE’S LIABILITY EXCEED THE AMOUNT YOU HAVE PAID TO OMNISOURCE. Follow all instructions and heed all warnings accompanying any products offered by OmniSource. Some products, including those with small pieces, may not be suitable for children and should be kept out of the reach of children. YOU AGREE NOT TO JOIN IN ANY LAWSUIT WITH ANOTHER PERSON OR ENTITY OR SERVE AS A CLASS REPRESENTATIVE OF ANY CLASS ACTION LAWSUIT AGAINST OMNISOURCE ARISING OUT OF YOUR PURCHASE OR USE OF PRODUCTS OFFERED BY OMNISOURCE.

Indemnification: YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD COMPLETELY HARMLESS OMNISOURCE FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING FROM OR RELATED TO YOUR USE OF ANY ITEMS PURCHASED FROM OMNISOURCE.

Governing Law and Venue: This Agreement, the entire relationship between you and OmniSource, and any litigation or other legal proceeding between you and OmniSource (whether grounded in tort, contract, law or equity) shall be governed by and construed in accordance with the laws of the State of Indiana, without giving effect to its choice of law rules. If any claim or dispute should arise with respect to any matter relating to these Terms and Conditions of Sale or other documents (including the Terms of Use on any website or portal owned or operated by us), the claim or dispute shall first be resolved by mediation pursuant to the Commercial Mediation Rules of the American Arbitration Rules of the American Arbitration Association. If the claim or dispute cannot be resolved by mediation, then the parties assent to personal jurisdiction in the Superior Court of Marion County, State of Indiana. In the event OmniSource is required to retain the services of an attorney for purposes of collecting a past due balance against you, or to otherwise enforce your promises under this Agreement, you agree to pay all of OmniSource’s costs of litigation, including but not limited to, attorney’s fees, interest on any past due amounts in the amount 1.5% per month, court costs and other third party expenses.
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