1. SCOPE. These Terms and Conditions of Sale (these "Terms") apply to the sale of devices, services, support and training, and ancillary products (collectively, the "Products") offered by BrightSign LLC ("Seller") to the buyer ("Buyer") identified in the accompanying quotation, credit application, purchase order, order acknowledgment, or invoice (the "Ordering Document"). The End User License Addendum below (the “EULA”) applies to the licensing of any software provided with or embedded into any such Products (the “Software”) and is hereby expressly incorporated into and forms a part of these Terms, and such Software will be deemed part of the “Products” hereunder. These Terms and the Ordering Document (collectively, this "Agreement") comprise the entire agreement between the parties regarding the Products. Seller may assign its rights under this Agreement to any affiliate or successor to its rights in the Products. Buyer accepts these Terms by signing and returning Seller’s quotation, by sending a purchase order in response to the quotation, or by Buyer’s instructions to Seller to ship the Products. Except where Buyer and Seller have executed a separate written agreement that expressly supersedes these Terms, no other terms, conditions, or warranties other than those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions, whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless made in writing and signed by Seller’s authorized representative. Buyer is hereby notified of Seller’s express rejection of any terms proposed by Buyer in accepting Seller’s quotation. Neither Seller’s subsequent lack of objection to any terms, nor the delivery of the Products, shall constitute an agreement by Seller to any other terms.
2. RESTRICTIONS ON USE. Except as otherwise permitted by law, Buyer may not modify, reformat, enhance, edit, translate, adapt, reverse engineer, decompile, reverse compile, disassemble, create derivative works based upon, remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Products, or otherwise alter the Products (whether Products are hardware, software, or a combination thereof) without Seller’s prior written consent, and shall comply with Seller’s Acceptable Use Policy.
3. SHIPMENT AND DELIVERY. For orders within the U.S., Seller will ship the Products FOB (UCC 2002) Seller’s distribution facility in Minden, NV. For orders in Asia or the Middle East, Seller will ship the Products Ex-Works (Incoterms 2010) Seller’s distribution facility in Hong Kong. For Orders in Europe, Seller will ship the Products Ex-Works (Incoterms 2010) Seller’s distribution facility in the Netherlands. Title to the Products (except Software) and risk of loss will pass to Buyer upon Seller’s delivery of the Products to the carrier. For clarity, notwithstanding anything herein, all Software is licensed pursuant to the EULA and not sold. All delivery dates, unless otherwise specified on the Ordering Document as "firm," are estimates only and are not binding.
4. PRICE. Prices for the Products will be as specified in an applicable Ordering Document or on Seller’s web store, or in applicable, current, and valid Seller-authorized price sheets. Prices in any Ordering Document are subject to change upon notice to Buyer at any time before an Ordering Document has been accepted. Prices for Products covered by these Terms may be adjusted by Seller, upon notice to Buyer, at any time prior to shipment, to reflect any increase in Seller’s cost of raw materials incurred by Seller after issuance of the applicable Ordering Document. All listed prices are in U.S. dollars and are exclusive of any sales, use, excise, withholding, value-added and other taxes, duties, levies, tariffs, and other charges except for sales in the European Union where the BrightSign European Distribution Charge ("EUD") charge covers importation logistics costs, custom fees, and applicable duties. Applicable sales tax and other required charges may be added by Seller in the Ordering Document.
5. TAXES AND DUTIES. In addition to any payments due to Seller under this Agreement, Buyer agrees to pay, indemnify, defend, and hold Seller harmless from any duty, tariff, custom, or fee or any sales, use, excise, import or export, value-added and all other taxes of every kind and nature imposed by any governmental authority with respect to any payment to be made by Buyer to Seller under this Agreement or any Product to be delivered by Seller under this Agreement excepting those taxes imposed upon Seller's income.
6. SUBSCRIPTIONS AND AUTOMATIC RENEWALS. For Products that are sold as subscriptions, the term of the subscriptions ("Term") will be indicated in the Ordering Document. UNLESS TIMELY CANCELED IN WRITING PRIOR TO THE EXPIRATION OF THE CURRENT TERM, BUYER’S SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE APPLICABLE TERM ("RENEWAL TERM"), AND SELLER WILL AUTOMATICALLY CHARGE BUYER’S CREDIT CARD ON FILE OR BILL BUYER IF BUYER HAS PRE-APPROVED TERMS WITH AVAILABLE CREDIT WITH SELLER ON RENEWAL. If Buyer exceeds a contractual usage limit, Buyer will execute an Ordering Document for additional quantities of the applicable services and/or pay for excess usage. Except as otherwise specified here or in an Ordering Document, the term of a subscription commences on the subscription purchase date (and not on the date of first use). Payment obligations are non-cancellable, and fees paid are non-refundable, and quantities purchased cannot be decreased during the applicable subscription term. Buyer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Seller regarding future functionality or features. Purchases must be prepaid unless a customer has been granted payment terms by the Seller in which case payments will be made when invoiced as per the payment terms that have been granted. Seller will notify Buyer of the automatic renewal prior to the automatic renewal date using the email address it has on file.
7. SUPPORT AND TRAINING. All payments for the purchased support and training ("Support Services") will be due and payable upon ordering. Buyer must redeem all purchased Support Services within twelve (12) months from the date of the purchase. If not redeemed within one year, the delivery of the Support Services will expire, with no right to a refund or credit. All travel expenses billed to trainees are governed by Seller’s travel expense reimbursement policies which can be provided to Buyer upon request. For live certified training courses, cancellations must be made in writing at least seven (7) days prior to the scheduled training date or no refunds will be made. Training seats purchased may be transferred to other personnel at any time. No-shows not cancelled seven (7) days in advance of a training session will not be entitled to a refund. All trainee travel costs, accommodations and meal expenses are the responsibility of the trainee.
8. PAYMENT TERMS
8.1 Credit Terms. Unless otherwise agreed in writing, all payments will be made promptly by Buyer as per payment terms that may be granted by Seller to Buyer after Buyer completes a credit application. Payment terms may be revised by Seller from time to time during the Term at Seller’s sole discretion and any changes will apply to future orders. All payments will be made in U.S. dollars, free of any currency controls or other restrictions.
8.2 Invoicing and Payment. Buyer will provide Seller with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Seller. If Buyer provides credit card information to Seller, Buyer authorizes Seller to charge such credit card for all purchased Products listed in the Ordering Document for the initial subscription term and any renewal subscription term. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Seller will invoice Buyer in advance and otherwise in accordance with the relevant Ordering Document in accordance with the credit terms extended to Buyer by Seller.
8.3 Overdue Charges. If any invoiced amount is not received by Seller by the due date, then without limiting Seller’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Seller may condition future subscription renewals and Order Forms on revised payment terms shorter than those currently specified in the Seller’s existing credit authorization to Buyer.
8.4 Suspension of Service and Acceleration. If any fees owed by Buyer are overdue, Seller may, without limiting its other rights and remedies, accelerate Buyer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Buyer’s access to and use of the Products until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Seller will give Buyer at least ten (10) days’ prior notice that its account is overdue before suspending Buyer’s account. Seller will not exercise its rights under the "Overdue Charges" or "Suspension of Service" sections in these Terms if Buyer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
9. 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 this Agreement is confidential, solely for the use of performing this Agreement 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; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
10. TERMINATION. In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer's receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of this Agreement, in whole or in part and has not cured its breach of this Agreement within thirty (30) days from the date of written notice from Seller; 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. Upon termination of this Agreement, all licenses provided under this Agreement shall terminate and any support or maintenance shall cease.
11. NO ADDITIONAL WARRANTY. THE LIMITED WARRANTY SET FORTH IN THE DOCUMENTATION ACCOMPANYING THE PRODUCTS AND ON SELLER’S WEBSITE SHALL APPLY AND IS IN LIEU OF ANY OTHER WARRANTY OR REPRESENTATION, ORAL OR WRITTEN. OTHER THAN THE EXPRESS LIMITED WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER (I) MAKES NO OTHER EXPRESS WARRANTIES; (II) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; AND (III) DISCLAIMS ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, SELLER DOES NOT WARRANT AGAINST INTERFERENCE WITH BUYER’S ENJOYMENT OF THE PRODUCTS, THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET BUYER’S REQUIREMENTS, THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED.
12. LIMITATIONS ON LIABILITY. IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS. IN NO EVENT WILL SELLER’S TOTAL LIABILITY ARISING FROM ANY CAUSE OF ACTION, AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO SELLER BY BUYER FOR THE PRODUCT IN THE TWELVE (12) MONTHS DIRECTLY PRECEDING THE FILING OF THE CLAIM FROM WHICH DAMAGES AROSE.
13. GENERAL PROVISIONS
13.1. Trade Compliance. Buyer will not export or re-export the Products, or any technical information related thereto, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, the European Union, and other applicable jurisdictions. Buyer will not permit any user to access or use the Products in a U.S-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria, and the region of Crimea). Buyer represents and warrants that it is not the subject or target of, and that Buyer is not located in a country or territory that is the subject or target of, these economic sanctions.
13.2. Severability and Waiver; Amendments. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the provisions shall remain in full force and effect. The invalid or unenforceable provision shall be modified so as to render it enforceable while giving effect, as nearly as possible to the original intent of the parties. Any waiver by either party of any breach of any term or condition of this agreement shall not be construed as or be deemed to be a waiver of any future breach of such term or condition.
13.3. Force Majeure. Seller shall not be liable to Buyer for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control or reasonable control of Seller’s suppliers, including, without limitation, any of the following: acts of God, war, fire, flood, civil unrest or commotions, disease, epidemic, pandemic, embargos, or government intervention or action.
13.4. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
13.5. Governing Law and Venue. This Agreement will be governed and construed in accordance with the laws of the State of California, excluding its conflict of laws principles, and each party hereby irrevocably consents to the personal jurisdiction and venue in the state and federal courts located in Santa Clara County, California for all claims arising under or related to this Agreement. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
END USER LICENSE ADDENDUM
PLEASE READ THIS EULA CAREFULLY BEFORE USING OR DOWNLOADING BRIGHTSIGN SOFTWARE. BY DOWNLOADING OR USING THE SOFTWARE OR ANY SOFTWARE UPDATES, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD OR USE THE SOFTWARE OR ANY SOFTWARE UPDATES.
1. GENERAL. The Software may be updated or replaced by software updates or system restore software provided by Seller (“Updates”). All Updates are deemed part of the “Software” hereunder. Seller retains ownership of the Software itself and reserve all rights in the Software not expressly granted to you. This EULA will govern any Updates provided by Seller.
2. LICENSE AND RESTRICTIONS
2.1. License. Subject to the terms and conditions of this Agreement, Seller grants Buyer a limited, non-exclusive, non-sublicenseable, non-transferrable license to use the Software in connection with Buyer’s permitted use of hardware Products purchased in the Ordering Document, for Buyer’s internal business purposes and in accordance with the documentation provided by Seller in connection with the Products (the “License”).
2.2 Restrictions. Buyer agrees not to install, use or run the Software on any non-Seller Product or device, or to enable others to do so. This License does not grant Buyer any rights to use Seller’s proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications. Features of the Seller Software and the Services may not be available in all languages or regions and some features may vary by region. Buyer will not rent, lease, lend, sell, redistribute or sublicense the Software or otherwise use or exploit the Software other than as expressly permitted herein.
3. CONSENT TO USE DATA. Buyer agrees that Seller and its subsidiaries may collect and use technical and related information, including but not limited to technical information about Buyer’s computer, system and application software and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to Buyer (if any) related to the Software. Seller may use this information, as long as it is in a form that does not personally identify Buyer, to improve Seller’s products or to provide services or technologies to Buyer.