Terms and Conditions of Sale

 

IMPORTANT NOTICE — READ BEFORE ISSUING A PURCHASE ORDER

BrightSign LLC sells exclusively on these Terms of Sale. BrightSign expressly rejects any and all additional or different terms contained in a customer purchase order or any other customer document, portal, or system. BrightSign’s acceptance of any purchase order is expressly made conditional upon the customer’s assent to these Terms and to no others and constitutes a counteroffer under California Commercial Code section 2207.

Where a separate written agreement executed by authorized representatives of both parties is in effect, that agreement prevails over these Terms with respect to the subject matter it covers.

Issuing a purchase order, instructing shipment, accepting delivery, using or activating any product or software, or paying any BrightSign invoice constitutes acceptance of these Terms.

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These Terms and Conditions of Sale are issued by BrightSign LLC. Effective October 1, 2026.

1. SCOPE AND DEFINITIONS

1.1. Scope. These Terms and Conditions of Sale (these “Terms“) govern all Ordering Documents between BrightSign LLC or any of its affiliates (each, “BrightSign” or “Seller”) and the purchaser identified in the applicable Ordering Document (“Buyer“) and any other purchase of any BrightSign Product made by or on behalf of Buyer.

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Devices” means all BrightSign hardware devices and other hardware products, including all accessories and related hardware devices.

“Products” means all Devices, Software, support, training and ancillary products and services offered by or on behalf of Seller.

“Software” means all software, firmware, cloud services and other software products provided with, embedded into, licensed for use with, or delivered in connection with any Device or other Product, including operating system and firmware required for Devices to function, together with any updates, upgrades, patches, and system restore images.

“Ordering Document” means, collectively, Seller’s quotation, a purchase order or similar ordering document submitted by or on behalf of Buyer (“Purchase Order”) to the extent accepted by Seller, Seller’s Sales Order and order acknowledgment, Seller’s invoice and any other similar document.

“Sales Order” means the sales order generated by Seller pursuant to a Purchase Order, which is accepted by or on behalf of Buyer.

1.2. Additional Terms & Incorporated Policies. Seller’s terms, conditions and policies applicable to Buyer’s use of Seller’s Products, Seller’s website and related features and offerings, located at https://www.brightsign.biz/legal, including Seller’s Hardware Limited Warranty, Acceptable Use and Privacy Policies, and all applicable firmware, cloud and software licenses, and any other terms provided by or on behalf of Seller applicable to its Products (collectively, “Additional Terms”) are hereby incorporated by reference.

2. ACCEPTANCE; EXPRESS REJECTION

2.1. Offer and Counteroffer. A Purchase Order constitutes an offer to purchase Products on the terms and conditions set forth in these Terms. Seller’s acceptance of any Purchase Order is expressly made conditional upon Buyer’s assent to these Terms and to no others. Seller’s Sales Order (or applicable Ordering Document submitted by or on behalf of Seller in response to Buyer’s Ordering Documents) constitutes a counteroffer under California Commercial Code section 2207 to the extent it differs from Buyer’s Purchase Order.

2.2. Express Rejection. Seller expressly rejects, and gives Buyer notice of objection to, any and all terms and conditions that are additional to or different from the terms and conditions set forth in these Terms, whether contained in Buyer’s Purchase Order, shipping release, supplier portal, click-through or click-wrap terms, standard purchasing terms, supplier code of conduct, quality agreement, vendor onboarding forms or any other Buyer document or system, and whether or not such terms materially alter these Terms. No such additional or different term is binding on Seller unless set out in a writing signed by an authorized representative of Seller that expressly references and modifies these Terms.

2.3. Acceptance. Buyer accepts these Terms by any of the following: (a) signing and returning Seller’s Sales Order, (b) issuing a Purchase Order in response to any Seller quotation, (c) instructing Seller to ship Products, (d) accepting delivery of Products, (e) using or activating any Product and/or (f) paying any Seller invoice, in whole or in part.

2.4. No Waiver. Neither Seller’s failure to object to any Buyer Ordering Document or other document, nor Seller’s acknowledgment of a Purchase Order or other Buyer Ordering Document that references Buyer terms, nor Seller’s shipment of Products, nor Seller’s acceptance of payment, constitutes acceptance of any Buyer term or a waiver of this Section 2 (Acceptance; Express Rejection).

2.5. No Course of Dealing. No course of dealing, course of performance, or usage of trade will be used to modify, supplement or explain any provision of these Terms.

3. ORDER OF PRECEDENCE

3.1. Separate Written Contract Prevails. Where a separate written agreement has been executed by authorized representatives of both parties and is in effect at the time an order is accepted, that agreement prevails over these Terms with respect to the specific subject matter contained therein. These Terms govern all subject matter not covered by such agreement, and the two are to be read together wherever they can be reconciled.

3.2. Precedence. Subject to Section 3.1 (Separate Written Contract Prevails), in the event of conflict the following order of precedence applies, from highest to lowest: (a) the separate written agreement described in Section 3.1 (Separate Written Contract Prevails), (b) the Additional Terms, including the applicable end user license agreement, cloud terms of service, and Hardware Limited Warranty, (c) these Terms, (d) Seller’s quotation, Sales Order, and order acknowledgment, and (e) Buyer’s Purchase Order, and then only as to part numbers, quantities, unit prices, ship-to location, and requested delivery dates that Seller has accepted.

3.3. Updates. Seller may update these Terms from time to time at its sole discretion. Updated Terms take effect on the date published and apply to orders accepted on or after that date.

4. QUOTATIONS AND ORDER ACCEPTANCE

4.1. Quotations. Quotations are not offers capable of acceptance except as expressly stated. Unless the quotation states a different validity period, a quotation expires thirty (30) days after its date and may be withdrawn or revised by Seller at any time before Seller accepts a corresponding Purchase Order. No Purchase Order is binding on Seller until Seller issues a written order acknowledgment or Sales Order, or ships Products against such Purchase Order. Seller may accept a Purchase Order in whole or in part.

4.2. Order Requirements. Purchase Orders must state Seller part numbers, quantities, unit prices, requested ship dates, ship-to and bill-to addresses, and, where Buyer is arranging transport, Buyer’s carrier and freight account. Seller may reject or hold any order that is incomplete, that conflicts with a Seller quotation, or that would exceed Buyer’s approved credit limit.

4.3. Minimum Quantities. Orders are subject to Seller’s then-current minimum order quantities and standard packaging multiples.

5. PRICES

5.1. Prices. Prices are as specified in the applicable Ordering Document, on Seller’s web store, or in Seller-authorized price sheets that are current and valid at the time of order acceptance. Prices quoted are subject to change on notice to Buyer at any time before Seller has accepted the corresponding Purchase Order. Seller may correct clerical, typographical, and pricing errors in any quotation, acknowledgment, or invoice at any time.

5.2. Cost Adjustments. Prices for Products covered by these Terms may be adjusted by Seller, on notice to Buyer at any time prior to shipment, to reflect any increase in Seller’s cost of raw materials, components, or logistics incurred after issuance of the applicable Ordering Document, and any newly imposed or increased duty or tariff.

5.3. Currency and Exclusions. All listed prices are in United States dollars and are exclusive of all sales, use, excise, withholding, value-added, and other taxes, duties, levies, tariffs, and charges, except that for sales in the European Union the BrightSign European Distribution Charge covers importation logistics costs, customs fees, and applicable duties.

5.4. Taxes and Duties. In addition to any payments due to Seller, Buyer will pay, and will indemnify, defend, and hold Seller harmless from, any duty, tariff, customs charge, or fee and any sales, use, excise, import or export, value-added, and all other taxes of every kind imposed by any governmental authority with respect to any payment made by Buyer to Seller or any Product shipped by Seller, excepting only taxes imposed on Seller’s net income.

5.5. Exemption Certificates; Withholding. Where Buyer claims exemption from any tax, Buyer must provide a valid exemption certificate acceptable to Seller and to the relevant authority before invoicing. Seller may invoice tax where a valid certificate has not been provided. If Buyer is required by law to withhold any amount from a payment, the amount payable will be increased so that Seller receives the full amount it would have received absent the withholding.

6. PAYMENT TERMS AND CREDIT

6.1. Currency. All payments must be made in United States dollars, free of any currency controls, bank charges, or other restrictions, and without setoff, counterclaim, deduction, or withholding of any kind.

6.2. Credit Terms. Credit payment terms are available only where Buyer has completed and submitted a BrightSign Credit Request Form, BrightSign has completed its credit review, and BrightSign Finance has offered specific credit payment terms to Buyer in writing. No payment terms (credit or otherwise) arise by course of dealing, by reference on a Buyer Purchase Order, or by Seller’s acceptance of a Purchase Order. Unless and until BrightSign Finance grants credit payment terms in writing, and at any time after granted terms are reduced, suspended, or revoked, Seller may require any one or more of the following as a condition of order acceptance or shipment: (a) payment in full in advance of shipment, (b) a valid credit card on file, which Buyer authorizes Seller to charge for all amounts due, including renewals, (c) a down payment or progress payments, or (d) an irrevocable letter of credit, bank guarantee, or other security acceptable to Seller. Payment terms and credit limits may be revised, reduced, suspended, or revoked by Seller at its sole discretion at any time, and any change applies to orders not yet shipped as well as to future orders. Seller may require updated financial information as a condition of maintaining credit terms.

6.3. Down Payments. Down payments are applied against the purchase price of the applicable order for which they were made. Down payments are non-refundable except to the extent an order is cancelled for Seller’s breach of these Terms.

6.4. Invoicing. Seller will invoice Buyer in accordance with the applicable Ordering Document and any credit payment terms extended to Buyer. Where payment is by credit card, charges are made in advance unless a different billing frequency is stated in the Ordering Document.

6.5. Payment Application. Seller may apply payments received to the oldest outstanding invoice regardless of any contrary designation by Buyer.

7. OVERDUE AMOUNTS; SUSPENSION AND ACCELERATION

7.1. Late Charges. If any invoiced amount is not received by Seller by its due date, then without limiting Seller’s other rights or remedies, those charges may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

7.2. Acceleration and Suspension. If any fees owed by Buyer are overdue, Seller may accelerate Buyer’s unpaid obligations so that all become immediately due and payable, withhold shipments, and suspend Buyer’s access to and use of the Products and any cloud services until paid in full. Other than for Buyers paying by credit card or direct debit whose payment has been declined, Seller will give Buyer at least thirty (30) days prior notice that its account is overdue before suspending the account. Seller may condition future orders, subscription renewals, and Ordering Documents on revised payment terms shorter than those currently extended to Buyer. Seller will not exercise its rights under Sections 7.1 (Late Charges) and 7.2 (Acceleration and Suspension) where Buyer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

7.3. Costs of Collection. Buyer will reimburse Seller for all reasonable costs of collection, including collection agency fees, court costs, and reasonable attorneys’ fees.

8. SHIPMENT, TITLE, AND RISK OF LOSS

8.1. FOB Origin. All shipments are made FOB Seller’s applicable warehouse or distribution facility. For orders shipping within the United States, Seller ships FOB (UCC §2-319) Seller’s distribution facility in Minden, Nevada. For orders shipping in Europe, Seller ships Ex Works (Incoterms 2020) Seller’s distribution facility in the Netherlands. For orders shipping in Asia or the Middle East, Seller ships Ex Works (Incoterms 2020) Seller’s distribution facility in Hong Kong. Seller does not sell on delivered, DDP, or destination terms.

8.2. Title and Risk of Loss. Title to Devices and risk of loss pass to Buyer at Seller’s shipping dock upon the earlier of (a) tender of the Devices to Buyer’s carrier at Seller’s dock, or (b) delivery of the Devices to any carrier. Buyer takes ownership when Buyer’s carrier picks the Devices up at Seller’s shipping dock. For clarity, and notwithstanding anything to the contrary, all Software is licensed pursuant to the applicable license agreement and is not sold.

8.3. Freight, Insurance and Duties. All freight, insurance, handling, customs, duties, tariffs, brokerage, and other charges from the FOB point are for Buyer’s account. Buyer will designate its carrier and provide its freight account number. Where Seller arranges transport at Buyer’s request, it does so solely as an accommodation and at Buyer’s cost and risk, and Seller is not liable for any act or omission of any carrier or freight forwarder. Claims for loss or damage in transit are between Buyer and the carrier. Buyer must inspect each shipment on arrival and note any visible damage or shortage on the delivery receipt. Claims for shortage, non-delivery, or shipment of nonconforming Products must be made to Seller in writing within ten (10) business days after the date of the applicable delivery receipt, failing which the shipment is deemed accepted as delivered.

8.4. Partial Shipments. Seller may make partial shipments and invoice each shipment separately. Each shipment is a separate and independent transaction, and payment is due accordingly.

8.5. Exporter of Record. Where Buyer’s carrier collects Products at Seller’s dock for export, Buyer is the exporter and importer of record and is responsible for all export and import formalities, licenses, and filings. Seller will provide country of origin and applicable tariff classification information on Buyer’s written request. Buyer will not incorrectly declare the origin, classification, or value of the Products, and will not claim any preferential origin treatment for which the Products do not qualify.

9. DELIVERY DATES, RESCHEDULING, AND FAILURE TO TAKE DELIVERY

9.1. General. All delivery and shipment dates are estimates only and are not binding unless expressly designated “firm” in the Ordering Document. Seller is not liable for any loss arising from late delivery, and late delivery does not entitle Buyer to cancel or to any credit, penalty, or liquidated damages. Buyer may reschedule a scheduled shipment only by written request received by Seller at least five (5) business days prior to the scheduled shipment date, and only with Seller’s written acceptance of the new date. Requests received later than five (5) business days before the scheduled shipment date will not be accepted, and the order will ship as scheduled. Buyer must take delivery of all Products on an accepted order within ninety (90) days of the original scheduled shipment date. No rescheduling, whether in a single request or cumulatively across multiple requests, may move a shipment beyond that ninety (90) day window.

9.2. Failure to Take Delivery. If Buyer fails to take delivery within the period required by Section 9.1 (General), or refuses a scheduled shipment, Seller may do any one or more of the following without further notice: (a) invoice the Products as of the original scheduled shipment date, with payment due per Buyer’s payment terms; (b) ship the Products to the ship-to address of record; (c) store the Products at Buyer’s sole risk and expense and charge Buyer reasonable storage, handling, and insurance costs; or (d) treat the order as cancelled by Buyer and apply the cancellation charges in Section 10 (Cancellation, Changes and Custom Products). Risk of loss passes to Buyer on the original scheduled shipment date in any case under this Section 9.2 (Failure to Take Delivery).

9.3. Allocation. If Products are in short supply, Seller may allocate available Products among its customers in any manner it considers reasonable, without liability to Buyer.

10. CANCELLATION, CHANGES AND CUSTOM PRODUCTS

10.1. Standard Products. Orders for standard catalog Products may be cancelled or reduced only by written notice to Seller and only with Seller’s written consent. Seller may condition its consent on payment of cancellation, restocking, and handling charges reflecting costs incurred and commitments made. Products that have shipped may not be cancelled.

10.2. Custom Products.

10.2.1. “Custom Product” means any Product that is custom built, custom configured, custom imaged or pre-loaded with Buyer-specified firmware or content, custom packaged, custom labeled or branded, built to Buyer’s specification or drawing, ordered in a non-standard configuration, or that incorporates components procured by Seller on a non-cancellable, non-returnable basis for Buyer’s order.

10.2.2. Orders for Custom Products may be cancelled only by written notice received by Seller at least ninety (90) days prior to the scheduled shipment date, and only with Seller’s written acceptance. A Custom Product order that is not cancelled within that window is non-cancellable, and Buyer remains liable for one hundred percent (100%) of the order price, together with any storage charges under Section 9.2 (Failure to Take Delivery). Custom Products are non-returnable and are not eligible for stock rotation, return for credit, price protection, or exchange.

10.2.3. Any change requested by Buyer to the specification, configuration, quantity, or labeling of a Custom Product is treated as a cancellation of the existing order and the placement of a new order, subject to Section 10.2.2, unless Seller agrees otherwise in writing. Accepted changes may result in revised pricing and revised shipment dates.

10.3. Seller Cancellation. Seller may cancel or suspend any order, without liability, if Buyer breaches these Terms, if Buyer’s credit is suspended or revoked, if the order cannot lawfully be fulfilled, or upon the occurrence of an event described in Section 27 (Force Majeure).

11. SUBSCRIPTIONS AND AUTOMATIC RENEWAL

11.1. Term. For Products provided on a subscription basis, the subscription term (“Subscription Term“) is stated in the applicable Ordering Document. Except as otherwise specified, the Subscription Term commences on the subscription purchase date and not on the date of first use. UNLESS CANCELLED IN WRITING THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE CURRENT TERM OR IF ORIGINAL ORDERING PO SPECIFIES AUTOMATIC CANCELLATION AT END OF TERM, BUYER’S SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE APPLICABLE TERM (A “RENEWAL TERM“), AND SELLER WILL AUTOMATICALLY CHARGE BUYER’S CREDIT CARD ON FILE OR INVOICE BUYER WHERE BUYER HAS PRE-APPROVED PAYMENT TERMS AND AVAILABLE CREDIT WITH SELLER. SELLER WILL NOTIFY BUYER OF THE AUTOMATIC RENEWAL PRIOR TO THE RENEWAL DATE USING THE EMAIL ADDRESS SELLER HAS ON FILE.

11.2. Non-Cancellable and Non-Refundable. Subscription purchases must be prepaid unless Buyer has been granted different payment terms by Seller, in which case payment is due as invoiced in accordance with the terms granted. Payment obligations for subscriptions are non-cancellable, fees paid are non-refundable, and quantities purchased may not be decreased during the applicable Subscription Term or applicable Renewal Term.

11.3. Usage Limits. If Buyer exceeds a contractual usage limit, Buyer will execute an Ordering Document for additional quantities of the applicable services or pay for excess usage.

11.4. No Reliance on Future Functionality. Buyer agrees that its purchases are not contingent on the delivery of any future functionality or features, and are not dependent on any oral or written public comments made by Seller regarding future functionality or features.

12. TERMINATION

12.1. Termination. In addition to any other remedies, Seller may terminate the agreement between the parties with immediate effect on written notice to Buyer if Buyer: (a) fails to pay any amount when due and the failure continues for thirty (30) days after Buyer’s receipt of written notice of nonpayment, (b) has not otherwise performed or complied with these Terms, in whole or in part, and has not cured its breach within thirty (30) days from the date of written notice from Seller, or (c) becomes insolvent, files a petition for bankruptcy, or has proceedings commenced against it relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. On termination, all licenses granted to Buyer terminate, all support and maintenance ceases, and all amounts owed by Buyer become immediately due and payable.

12.2. Survival. Sections 1 (Scope and Definitions), 3 (Order of Precedence), 5 through 7, 8.5 (Exporter of Record), 9.2 (Failure to Take Delivery), and 10 through 32 survive termination, together with any other provision that by its nature should survive.

13. SUPPORT AND TRAINING

13.1. General. All payments for purchased support and training (“Support Services“) are due and payable upon ordering. Buyer must redeem all purchased Support Services within twelve (12) months from the date of purchase. Support Services not redeemed within twelve (12) months expire with no right to refund or credit. For live certified training courses, cancellations must be made in writing at least seven (7) days prior to the scheduled training date, failing which no refund will be made. No-shows not cancelled seven (7) days in advance are not entitled to a refund. Training seats may be transferred to other Buyer personnel at any time during the applicable twelve (12) month period.

13.2. Travel Expenses. All travel costs, accommodation, and meal expenses related to Support Services are the responsibility of Buyer. Travel expenses billed to Buyer trainees are governed by Seller’s travel expense reimbursement policies, available on request.

14. PRODUCTS; SOFTWARE IS LICENSED, NOT SOLD

14.1. Device Software. Devices may require a Software license in order to function. Any and all such Software is licensed, not sold, under Seller’s applicable Software license terms set forth in the applicable Ordering Document or available at https://www.brightsign.biz/legal. No title to any Software passes to Buyer under these Terms.

14.2. Cloud Subscriptions. Cloud Software subscriptions are provided as a service and are governed by Seller’s applicable cloud subscription terms set forth in the applicable Ordering Document or available at: https://www.brightsign.biz/legal.

14.3. Open-Source Components. Certain Software may contain or be provided together with open-source software. Each item of open-source software is subject to its own license terms, which will be made available in the software itself, related documentation or another reasonable means (e.g., settings, help, legal, notices, about menus, source files or the like). Copyrights to the open-source software are held by the respective copyright holders indicated therein.

14.4. Acceptance of License Terms. Buyer’s purchase, download, installation, activation, or use of any Software constitutes acceptance of the applicable license or service terms by Buyer and, where Buyer is purchasing for resale or on behalf of an end user, Buyer is responsible for ensuring that the end user accepts those terms.

15. RESTRICTIONS ON USE

Buyer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying any Product; (b) attempt to probe, scan or test the vulnerability of any Product, breach the security or authentication measures of any Product without proper authorization or willfully render any part of any Product unusable; or (c) otherwise use any Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Ordering Document.

16. INTELLECTUAL PROPERTY

16.1. Ownership. Seller and its licensors retain all right, title, and interest in and to the Products, and all related intellectual property. Sale of a Device conveys no rights in any intellectual property other than the limited license expressly granted in the applicable license agreement. No license is granted by or on behalf of Seller by implication, estoppel, or otherwise. Buyer acquires no right to Seller’s proprietary interfaces or other intellectual property for use in the design, development, manufacture, licensing, or distribution of third-party devices, accessories, or software applications. Buyer acquires no right to use any Seller trademark, trade name, or logo except as expressly authorized in a separate written channel, marketing, or branding agreement.

16.2. Notices. Buyer will not remove, obscure, or alter any proprietary notice, label, serial number, or marking on or in any Product, including any Product packaging.

16.3. Feedback. Buyer may from time to time provide Seller with suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Products.  Seller will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Seller will have the full, unencumbered right, without any obligation to compensate or reimburse Buyer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

17. CONFIDENTIAL INFORMATION

Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of these Terms and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of these Terms; and (b) as required by law, in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.  Neither party will disclose the terms of these Terms to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section 17 (Confidential Information), the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in these Terms.

18. LIMITED HARDWARE WARRANTY

Devices are subject to the Limited Hardware Warranty set forth at https://www.brightsign.biz/legal/warranty/.

19. NO OTHER WARRANTY

THE LIMITED HARDWARE WARRANTY REFERENCED IN SECTION 18 (LIMITED HARDWARE WARRANTY) APPLIES AND IS IN LIEU OF ANY OTHER WARRANTY OR REPRESENTATION, ORAL OR WRITTEN. OTHER THAN THAT 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 OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED.

20. LIMITATION OF 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, CONTENT, OR GOODWILL, OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS DIRECTLY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EXCEPT THAT SELLER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 21.2 (SELLER IP INDEMNITY) ARE INSTEAD SUBJECT TO THE SEPARATE CAP IN SECTION 21.6 (CAP; EXCLUSIVE REMEDY). THE LIMITATIONS IN THIS SECTION 20 (Limitation of Liability) APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BUYER ACKNOWLEDGES THAT THESE LIMITATIONS REFLECT AN AGREED ALLOCATION OF RISK AND ARE AN ESSENTIAL BASIS OF THE BARGAIN, AND THAT SELLER’S PRICING REFLECTS THAT ALLOCATION. Any action arising out of or relating to the sale of Products must be commenced within one (1) year after the cause of action accrues, except an action for non-payment or a claim under Section 21 (Indemnification), either of which may be brought within the period allowed by law.

21. INDEMNIFICATION

21.1. Buyer Indemnity. Buyer will defend, indemnify, and hold harmless Seller and its affiliates, officers, directors, employees, and agents from and against any claim, demand, loss, liability, damage, fine, penalty, cost, and expense, including reasonable attorneys’ fees, arising out of or relating to: (a) Buyer’s breach of these Terms, including any Additional Terms; (b) Buyer’s use, installation, configuration, resale, or distribution of the Products; (c) any modification of the Products by or for Buyer, or any combination of the Products with other products, software, content, or systems not supplied by Seller; (d) any specification, design, drawing, artwork, content, or instruction supplied by or on behalf of Buyer, including for any Custom Product; (e) Buyer’s violation of any law or regulation, including export control, sanctions, data protection, and anti-corruption laws; or (f) any claim by a customer or end user of Buyer arising from a representation or warranty made by Buyer that exceeds Seller’s published warranty.

21.2. Seller IP Indemnity. Seller will defend Buyer against any third-party claim alleging that a Device, as delivered by Seller and used by Buyer in accordance with these Terms and Seller’s documentation, infringes any United States patent, copyright, or trademark, or misappropriates any United States trade secret, and Seller will pay the damages and costs finally awarded against Buyer by a court of competent jurisdiction, or agreed in settlement by Seller, in respect of such claim.

21.3. Conditions. Seller’s obligations under Section 21.2 (Seller IP Indemnity) are conditioned on Buyer: (a) giving Seller prompt written notice of the claim, and in any event within thirty (30) days of becoming aware of it; (b) granting Seller sole control of the defense and settlement of the claim, provided that Seller will not enter into any settlement that imposes a non-indemnified liability or admission of fault on Buyer without Buyer’s prior written consent, not to be unreasonably withheld; and (c) providing reasonable cooperation and information at Seller’s expense. Buyer’s failure to comply with (a) or (c) relieves Seller of its obligations only to the extent Seller is materially prejudiced by that failure.

21.4. Exclusions. Seller has no obligation under Section 21.2 (Seller IP Indemnity) to the extent a claim arises from: (a) modification of the Product by anyone other than Seller; (b) combination or use of the Product with any product, software, content, or system not supplied by Seller; (c) compliance with Buyer’s specifications, designs, drawings, artwork, content, or instructions, including for any Custom Product; (d) use of a superseded version of a Product or Software where the claim would have been avoided by using a current version made available by Seller; (e) continued allegedly infringing activity after Seller has notified Buyer to stop; (f) use in violation of these Terms or applicable law; (g) any Software licensed under a separate end user license agreement or cloud terms of service, which is governed by the indemnity (if any) in that agreement; or (h) any third-party or open source component described in Section 14.3 (Open Source Components).

21.5. Seller Remedies. If a Product becomes, or in Seller’s opinion is likely to become, the subject of an infringement claim, Seller may at its option and expense (a) procure for Buyer the right to continue using the Product, (b) modify or replace it with a functionally equivalent non-infringing product, or (c) accept its return and refund the price paid, less straight-line depreciation over a three (3) year useful life.

21.6. Cap; Exclusive Remedy. Seller’s total aggregate liability under Section 21.2 (Seller IP Indemnity), including defense costs, damages, and amounts paid in settlement, will not exceed two (2) times the amounts paid by Buyer to Seller for the Devices giving rise to the claim in the twelve (12) months directly preceding the event giving rise to the claim. Sections 21.2 through 21.6 state Seller’s entire liability, and Buyer’s sole and exclusive remedy, for any claim of infringement or misappropriation of intellectual property rights.

22. HIGH RISK AND UNINTENDED USE

The Products are designed and intended for commercial digital signage and related media playback applications. They are not designed, tested, or intended for use in any application in which failure could lead to death, personal injury, or severe physical, environmental, or property damage, including life support, medical, nuclear, aviation, navigation, weapons, emergency response, or process control applications. Buyer assumes all risk of, and will indemnify Seller against all liability arising from, any such use.

23. PRODUCT COMPLIANCE AND REGULATORY

23.1. Buyer Responsibilities and Obligations. Buyer is solely responsible for the compliance of the end system, installation, and application into which the Products are incorporated, including obtaining any approval, certification, registration, or license required in the jurisdiction of use. Where Buyer is the importer, distributor, or producer of record in its territory, Buyer is responsible for all applicable producer registration, reporting, recycling, take-back, packaging, and battery obligations, including any obligations under WEEE, packaging, and battery legislation applicable in that territory.

23.2. BrightSign Regulatory Compliance Information. For information regarding BrightSign Product regulatory compliance, please refer to the documentation set forth at: https://www.brightsign.biz/legal/regulatory/.

24. EXPORT CONTROL AND SANCTIONS

24.1. Buyer represents and warrants that (a) Buyer will not and will not permit any third party (including any end user) to (i) export, re-export, transfer, or divert any Products, or any technical information relating to them, to any destination, entity, or person prohibited or restricted by the export control and sanctions laws and regulations of the United States, the European Union, the United Kingdom, or any other applicable jurisdiction, or (ii) access or use any Products in any country, region, or territory that is at the relevant time subject to any comprehensive trade or economic sanctions or embargo; and (b) neither Buyer nor any of its owners, officers, or end users (i) is the subject or target of economic sanctions, (ii) is listed on the U.S. Specially Designated Nationals and Blocked Persons List, Entity List, Denied Persons List, or Unverified List, or on any equivalent restricted party list of another applicable jurisdiction, or (iii) is located in or organized under the laws of a country or territory that is the subject or target of such sanctions.

24.2. Buyer will provide end-user, end-use, and destination information on Seller’s request, and will retain records of its export and re-export transactions as required by applicable law. Seller may suspend or cancel any order, without liability, where Seller believes fulfillment would violate export control or sanctions law.

25. ANTI-CORRUPTION AND COMPLIANCE WITH LAWS

Buyer will comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010. Buyer has not and will not, directly or indirectly, offer, promise, pay, give, or authorize the payment or giving of anything of value to any government official, political party, or other person in order to obtain or retain business or secure any improper advantage in connection with any Products or these Terms. Buyer will maintain accurate books and records relating to its purchases and resale of all Products, and will comply with all other laws applicable to its purchase, import, resale, installation, and use of Products, including data protection and privacy laws.

26. AUTHORIZED RESALE

26.1. Authorized Resale. Buyer may resell Products only where Seller has authorized Buyer to do so, and only within the territory, channel, and customer segment stated in that authorization or in the applicable Ordering Document. Buyer will not sell, ship, or divert Products outside that scope, and will not engage in transshipment, parallel importation, or gray-market distribution of Products.

26.2. Pass-Through Terms. Buyer will make no representation, warranty, or commitment regarding the Products that exceeds Seller’s published specifications, documentation, and Limited Hardware Warranty, and any such representation is Buyer’s sole responsibility. Buyer will pass through to each of its customers and end users the applicable Additional Terms, including the applicable end user license agreement and cloud subscription terms, and will not purport to grant any right in the Software beyond those terms.

26.3. Program Compliance. Buyer will comply with Seller’s then-current Minimum Advertised Price (MAP) Policy and any other channel program terms published by Seller or set out in the applicable Ordering Document. Seller may suspend or withdraw Buyer’s resale authorization, and may decline or cancel any order, where Buyer does not comply with this Section 26 (Authorized Resale).

27. FORCE MAJEURE

Seller is not liable to Buyer for any delay in or failure of performance arising from any cause beyond its reasonable control or the reasonable control of Seller’s suppliers, including acts of God, war, terrorism, fire, flood, earthquake, severe weather, civil unrest or commotion, disease, epidemic, pandemic, strike or labor disturbance, embargo, sanctions, export or import restriction, tariff action, systemic component or raw material shortage, utility or transportation failure, cyberattack, or governmental intervention or action. Delivery dates are extended for the duration of the event, and Seller may allocate available Products under Section 9.3 (Allocation).

28. ASSIGNMENT

Buyer may not assign any of its rights or delegate any of its obligations under these Terms without Seller’s prior written consent, including by operation of law or in connection with a change of control. Any purported assignment or delegation in violation of this Section is null and void, and no assignment or delegation relieves Buyer of any obligation. Seller may assign these Terms and any of its rights herein freely.

29. NOTICES

Notices must be in writing and are effective on receipt when delivered to the address of the receiving party stated in the applicable Ordering Document, by personal delivery, nationally recognized overnight courier, or certified mail, or when sent by email to the address of record of the receiving party with confirmation of transmission. Notices to Seller relating to cancellation, rescheduling, warranty claims, or disputes must additionally be sent to Seller’s order administration contact at orders@brightsign.biz.

30. GOVERNING LAW, VENUE, AND UCC

These Terms and all sales of Products are governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles, and including the California Uniform Commercial Code as applicable to the sale of goods. Each party irrevocably consents to the personal jurisdiction of, and venue in, the state and federal courts located in Santa Clara County, California for all claims arising under or relating to these Terms or any sale of Products. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. In any action to enforce these Terms, the prevailing party is entitled to recover its reasonable attorneys’ fees and costs.

31. SEVERABILITY, WAIVER, AND AMENDMENT

If any provision of these Terms is held invalid or unenforceable, the remaining provisions remain in full force and effect, and the invalid or unenforceable provision will 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 is not, and is not to be construed as, a waiver of any future breach of that or any other term or condition. No waiver is effective unless in writing and signed by the waiving party. No modification of these Terms is binding on Seller unless made in writing and signed by an authorized representative of Seller. Nothing in these Terms creates any partnership, joint venture, agency, franchise, or employment relationship between the parties, and neither party has authority to bind the other.

32. ENTIRE AGREEMENT

Subject to Section 3.1 (Separate Written Contract Prevails), these Terms together with the Ordering Document and the policies and license agreements incorporated by reference comprise the entire agreement between the parties regarding the Products, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, regarding their subject matter.