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Terms and Conditions

OMNIFIC ADVERTISING, INC. is referred to herein as "Omnific." The person, firm, or corporation to whom or which these Standard Terms and Conditions apply is called "Customer."  From time to time, Omnific and Customer may be referred to as a "party" or collectively as the "parties."  The products or services covered by these Terms and Conditions are referred to herein as the "Products." These Standard Terms and Conditions are referred to herein as "Terms and Conditions."

1.  ACCEPTANCE OF TERMS AND CONDITIONS.  These Terms and Conditions apply to all sales made by Omnific to Customer unless otherwise expressly agreed upon in a written document signed by Omnific and Customer.  Delivery of Products, acceptance of payment or any inaction by Omnific shall not constitute Omnific’ s consent to or acceptance of any additional or different terms from that stated in these Terms and Conditions.  Except for terms in an order placed by Customer and signed by both Customer and Omnific, the information and conditions stated in these Terms and Conditions are controlling over any conflicting statements or terms listed on Customer's purchase orders, invoices, confirmations or other documents created, provided, or offered by Customer ("Customer's Documents").  Omnific's performance of any contract is expressly made conditional on Customer's agreement to these Terms and Conditions, unless otherwise specifically agreed to in writing by Omnific.

2.  PAYMENT TERMS.  All payments are to be by credit card, at the time of purchase of the Product. Omnific's prices do not include sales, use, excise or similar taxes, duties or levies. Accordingly, Customer shall be responsible for payment of any applicable sales, use, excise or similar taxes, duties or levies now or hereafter imposed by any governmental authority on the manufacture, sale, delivery and/or use of the Products covered hereby, or, in lieu thereof, provide Omnific with tax exemption certificates acceptable to the taxing authorities as required.  In the event of default, Omnific shall have all the remedies provided under the California Commercial Code, which shall be cumulative with one another and with any other remedies that Omnific may have, without limitation, at law, in equity, under any agreement of any type. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or any other remedy at any time.

3.  ENGAGEMENT OF OMNIFIC AS AGENT.  As a condition of and in connection with Omnific providing to Customer the Products and services, Customer specifically acknowledges that Customer has engaged Omnific as its agent, in connection with the acquisition of the product information from the applicable manufacturer.

4. DISCLOSURES AND WARRANTIES. OMNIFIC AND CUSTOMER ACKNOWLEDGE AND AGREE THAT CERTAIN INFORMATION PROVIDED TO CUSTOMER, FOR USE ON ITS WEBSITE AND FOR ITS SALES OPERATIONS, MAY BE BASED UPON INFORMATION PROVIDED BY THE MANUFACTURER TO AUTOMOBILE DEALERS, AND OMNIFIC HAS MADE NO INDEPENDENT INVESTIGATION WITH REGARD TO SUCH INFORMATION.  OMNIFIC ONLY WARRANTS AND REPRESENTS THAT THE PRODUCT SHALL BE BASED ON THE MOST CURRENT INFORMATION PROVIDED TO OMNIFIC AND SHALL BE IN COMPLIANCE WITH APPLICABLE CALIFORNIA LAWS, AND OMNIFIC SHALL INDEMNIFY AND HOLD CUSTOMER HARMLESS FROM ANY CLAIMS OR LIABILITIES RELATING TO THE NON-COMPLIANCE OF SUCH PRODUCT, OR ANY CLAIMS OF FALSE ADVERTISING OR OTHER VIOLATIONS OF THE APPLICABLE LAWS RELATING SPECIFICALLY TO OMNIFIC’S NEW VEHICLE INCENTIVE (NVI) PROGRAM.  HOWEVER, OMNIFIC MAKES NO WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO, AND THE FOREGOING INDEMNITY DOES NOT APPLY TO:  (1) WHETHER THE PRODUCTS SOLD HEREUNDER INFRINGE ANY TRADEMARK, COPYRIGHT, OR PATENT, U.S. OR FOREIGN, OR (2) ANY OTHER PROGRAM OFFERED BY OMNIFIC, INCLUDING THE PRE-OWNED VEHICLE INCENTIVE (PVI) PROGRAM OR THE LEASED VEHICLE INCENTIVE (LVI) PROGRAM.  CUSTOMER REPRESENTS THAT, TO THE BEST OF CUSTOMER’S KNOWLEDGE, THE PRODUCT OR THE USE OF THE PRODUCT BY CUSTOMER SHALL NOT VIOLATE ANY AGREEMENT WHICH CUSTOMER HAS WITH ANY MANUFACTURER.  EXCEPT FOR THE FOREGOING, CUSTOMER AGREES TO INDEMNIFY AND HOLD OMNIFIC HARMLESS FROM ANY LIABILITY BY VIRTUE OF CLAIMS ARISING OUT OF THE USE OF THE PRODUCT, OR AS A RESULT OF ANY CLAIM BROUGHT BY A MANUFACTURER WITH REGARD TO THE PLACEMENT OF THE PRODUCT AND/OR INFORMATION ON CUSTOMER’S WEBSITE.

5.  LIMITATION OF LIABILITY.   CUSTOMER SHALL HAVE THE RIGHT TO CANCEL THE PROGRAM, WITHOUT INCURRING CANCELLATION CHARGES.  OMNIFIC’S LIABILITY SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCTS.  OMNIFIC SHALL NOT BE LIABLE IN ANY EVENT FOR THE FOLLOWING TYPES OF DAMAGES: INCIDENTAL DAMAGES, PUNITIVE DAMAGES, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS OR LOST REVENUES OF ANY KIND WHETHER OR NOT OMNIFIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS PARAGRAPH SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY.  NO ACTION, REGARDLESS OF FORM, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE PRODUCTS FURNISHED OR SERVICES RENDERED BY OMNIFIC, MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

6.   INTEGRATION AND ASSIGNMENT.  These Terms and Conditions, together with any purchase contract or invoice, regarding Products acquired by Customer from Omnific shall constitute the sole and entire agreement between the parties with regard to the subject matter hereof and supersede any and all prior or contemporaneous oral or written agreements between them regarding the same.  No course of prior dealings between the parties and no usage of the trade shall operate to or be relevant to supplement or explain any term used in these Terms and Conditions. No subsequent alteration of these Terms and Conditions whatsoever shall be binding upon Omnific unless reduced to writing and signed by both Omnific and Customer. No agent, employee or representative of Omnific has any authority to bind Omnific to any affirmation, representation or warranty covering the Products sold by Omnific to Customer, and unless such affirmation, representation or warranty made by an agent, employee or representative is specifically included within these Terms and Conditions or within a written document signed by authorized officers of Omnific and Customer, it is not deemed a part of these Terms and Conditions and shall not in any way be enforceable against Omnific. Any assignment of these Terms and Conditions or any rights hereunder by Customer shall be void without Omnific's written consent.

7.   GOVERNING LAW AND INTERPRETATION.  The agreement and performance by the parties arising from or related to the transaction or transactions pertaining to these Terms and Conditions shall be construed in accordance with the laws (excluding the laws relating to conflicts) of the State of California.  Venue and jurisdiction in any action shall lie solely in Orange County, California. In the event of the arbitration or litigation of any dispute between Customer and Omnific, the prevailing party shall be entitled to recover reasonable attorney fees and costs.

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