TERMS AND CONDITIONS
These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") and services ("Services"), made available by SMS Assist, L.L.C. ("Seller") to you ("Buyer") through Seller’s web portal and as more fully described in a work order ("Work Order").
2. Delivery of Goods and Performance of Services.
- A. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in Seller’s web portal (“Portal”), the Work Order or with these Terms, and any such dates shall be estimates only.
B. With respect to the Services, Buyer shall
(i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer's premises and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services;
(ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of these Terms;
(iii) provide such materials or information as Seller may reasonably request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects;
(iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
- C. The Goods (if any) will be delivered in conjunction with the Services to Buyer’s location (the “Delivery Point”) and within a reasonable time after the receipt of this order. Seller shall not be liable for any delays, loss or damage in transit.
- D. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
- E. Seller will attempt to contact Buyer upon delivery of the Goods or Services in order to confirm that the applicable Goods or Services have been delivered. If Buyer fails to respond to Seller’s attempts within twenty-four hours of delivery, Seller will be entitled to assume the Goods or Services have been satisfactorily delivered.
3. Price and Payment.
Buyer shall pay to Seller the price for the Goods and Services as quoted to Buyer by Seller ("Price"). Unless otherwise stated in these Terms, the Price shall not include (a) all applicable federal, state and local taxes, which shall be billed as a separate line item.
4. Credit Cards.
In order to purchase the Services, Buyer must provide Seller’s independent third-party payee (“Payee”) with a valid credit or debit card (“Card”) belonging to Buyer. The Card must have available credit or debit balance sufficient to pay the Price at the time Payee processes the Card. In the event the Card is cancelled or has insufficient credit, funds, or balance, Buyer must immediately provide Seller’s independent third-party payee with a different credit or debit card. In the event any Card is rejected by Payee, Seller’s may immediately terminate the order and hold Buyer responsible for any costs associated with cancelling the transaction. Once the Goods or Services have been delivered to Buyer, Seller will charge the Card an amount equal to the applicable Price.
Buyer must notify Seller of any errors or discrepancies within thirty (30) days after the acceptance of this these Terms. Buyer releases Seller from any and all liability and claims resulting from any such error or discrepancy that is not reported to Seller within such thirty (30) day notice period.
- A. Seller represents and warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote reasonably appropriate resources to meet its obligations under this Agreement.
- B. Seller shall not be liable for a breach of the warranty set forth in Section 5(A) unless Buyer gives written notice of the defective Services, sufficiently described, to Seller within ninety (90) days of the completion of the Services.
C. Subject to Section 5(B), Seller shall, in its sole discretion, either:
(i) repair or re-perform such Services (or the defective part);
(ii) credit or refund the price of such Services at the pro rata contract rate.
- D. The remedies set forth in section 5(c) shall be the buyer's sole and exclusive remedy and seller's entire liability for any breach of the limited warranty set forth in section 5(a).
- E. Except for the warranty set forth in section 5 above, seller makes no warranty whatsoever with respect to the services, including any (a) warranty of merchantability; or (b) warranty of fitness for a particular purpose; or (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.
- F. In the event that Buyer wrongfully alleges that Seller has breached the warranty described in this Section 5, then Seller reserves the right to charge Buyer for any costs incurred by Seller in attempting to remedy the alleged breach of the warranty.
Seller will be responsible for providing all necessary tools, equipment, and labor required for the Services. Buyer will be responsible for providing access, authorization, and entry to the property necessary for performing the Services. If Seller's performance of its obligations under these Terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Buyer will be responsible for submitting a Card to the Payee in order to make additional funds available, if necessary. Buyer shall be deemed to have waived any claim for adjustment unless asserted in writing within 10 days from the date of modification.
8. Breach, Rejection, Termination.
The failure of Buyer to perform any provision of these Terms required to be performed by Buyer including, but not limited to, non-payment and not allowing access, authorization, and entry to property, shall be a breach of these Terms. Seller may, at any time and for any reason or no reason, reject or terminate these Terms in whole or in part, whether Seller is in default or not. Upon rejection or termination, Seller shall have no obligations hereunder and Buyer shall not be entitled to any refund and will remain responsible for payment of all agreed upon Prices. Buyer cannot terminate these Terms once Seller accepts Buyer’s payment. If Seller is unable to perform due to Buyer’s breach, Buyer shall not be entitled to any reimbursement, and Seller may pursue any and all remedies it may have against Buyer under these Terms or at law or in equity.
Each of the rights and remedies reserved by Seller in these Terms shall be cumulative and additional to any other or further remedies in law or equity.
Buyer shall not (a) assign these Terms, any interest herein or any rights hereunder nor (b) subcontract any obligation to be performed hereunder without the prior written consent of Seller. Buyer agrees that Seller may in its sole discretion assign these Terms and any interest herein or any rights hereunder.
11. Confidential Information.
All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; (c) rightfully obtained by Buyer on a non-confidential basis from a third party; or (d) developed independently by Buyer without any reference to the confidential information.
Buyer shall indemnify, defend and hold harmless seller and its employees, affiliates, contractors, and subcontractors against any loss arising out of, connected with or resulting from the services, including, but not limited to, all claims, actions, proceedings, costs, expenses, damages, liabilities, penalties, fines, actual attorneys’ fees, consequential and incidental damages, and loss, damage, liability or claims whether arising out of breach of contract or tort (including negligence, resulting in injury or death to persons or damage to property).
13. Limitation of Liability.
- A. In no event shall seller be liable to buyer or any third party for any loss of use, revenue or profit or loss of data 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 been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
- B. In no event shall seller's aggregate liability arising out of or related to these terms, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to seller for the goods and services sold hereunder.
- C. The limitation of liability set forth in Section 12(b) shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
14. Snow and Ice Conditions.
Buyer understands that snow removal or ice control services at a particular location may not clear the area to "bare pavement" and that slippery conditions may continue to prevail even after plowing or ice control services have been completed. Buyer understands that Seller assumes no liability for this naturally occurring condition. Buyer is aware that weather conditions may change rapidly and without notice and that Seller assumes no liability for such changes in conditions.
15. No Modification.
Any attempt by Buyer to vary the Terms shall be deemed a material alteration. Such alteration shall not be binding unless the new provisions are accepted in writing by Seller.
16. No Implied Waiver.
No covenant or condition of these Terms can be waived except by the written consent of SELLER. Forbearance or indulgence by Seller in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by Buyer to which the same may apply.
Any notice to be given hereunder shall be given in writing, postage prepaid and shall be effective when deposited in the U.S. Mail.
18. Use of Seller’s Name.
Buyer shall not in any advertising, sale promotion materials, press releases or any other publicity matters use the name of Seller, Seller’s parent, any affiliate or subsidiary of Seller or any variation thereof or language from which the connection of said names may be implied without Seller’s prior written approval.
19. Force Majeure.
Seller shall not be liable for delays due to causes beyond its control and without its fault or negligence, including but not limited to acts of God, the public enemy, the government, strikes or other labor disputes, fires, floods, freight embargoes or unusually severe weather. No such event shall affect Buyer’s performance under these Terms.
In addition to any remedies that may be provided under these Terms, Seller may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under these Terms; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
21. Independent Contractor.
Seller shall provide the Services pursuant to these Terms as an independent contractor and not as an agent, servant or employee of Buyer.
22. Governing Law.
These Terms shall be interpreted and construed in accordance with the laws of the State of Illinois. The parties agree that the exclusive forum for any dispute shall be the federal or state courts of the State of Illinois. The parties hereby expressly consent to the exclusive jurisdiction of the federal or state courts of the State of Illinois for any dispute.
If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
24. Entire Agreement.
These Terms, along with the terms stated in the Work Order, constitute the entire agreement between Seller and Buyer with respect to the Services and supersedes all prior agreements, communications and understandings of any nature whatsoever with regards to the purchase of the Goods and Services, whether oral, written or otherwise.