BrightVault LLC
Terms and Conditions
TERMS & CONDITIONS APPLYING TO ALL SALES OF PRODUCTS AND SERVICES OFFERED BY BRIGHTVAULT:
Defined Terms: The following terms shall have the following meanings:
“Acceptance” has the meaning ascribed to it in Section 3.C.
“Buyer” means any person or entity that submits a Purchase Order to BrightVault.
“Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential.
“Contract” means, with respect to a Product or a Service, the combination of a Purchase Order and the Acceptance thereof by BrightVault.
“Final Invoice” means, with respect to any sale of a Product or Service, the actual invoice for Payment issued by BrightVaultto Buyer.
“Force Majeure Event” means any event or circumstance outside of BrightVault’s reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply as well as national or regional emergencies, natural disasters, acts of terrorism, government acts or orders, epidemics, pandemics, communicable diseases, and quarantine
“Party” or “party” means BrightVault or Buyer as the case may be; the term “Parties” or
“parties” means, collectively, BrightVault and Buyer.
“Payment” means BrightVault has received cleared funds from Buyer in BrightVault’s bank account on or before the invoice due date.
“BrightVault's Designated Shipping Point” means BrightVault’s headquarters located in Denver, Colorado, or, if BrightVault has manufactured or assembled, or other warehouse or manufacturing distribution point.
“"BrightVault's website" means www.BrightVault.com
“Service” means any service or work offered for sale by BrightVault. For clarity, and without limitation, such terms include engineering, installation, specifically defined work, reference designs, marketing collateral, software (unless the software is built into the Product), Samples, prototypes, experimental devices, and evaluation modules.
“Specifications” means measurable electrical and physical characteristics of a particular Product listed in the then-current official data sheet (including errata) for that Product.
“Terms” or “Terms of Sale” means these Terms and Conditions set forth herein.
1. Scope of Application.
a. Terms of Sale. These Terms of Sale apply to all business transactions between BrightVault and Buyer, including but not limited to each purchase and sale of a Product or Service offered by BrightVault to a Buyer and each Contract relating to the purchase and sale of a Product or Service.
b. Offers By BrightVault. All offers by BrightVault will be made, and all Contracts with Buyer
will be concluded exclusively on the basis of these Terms of Sale, which shall control any inconsistent or additional terms or conditions proposed by Buyer in a purchase order or other document.
c. Modifications. No modification of these Terms of Sale (including changes in scope, specifications, price or delivery schedule) shall be of any force or effect unless made in writing and signed by BrightVault; BrightVault hereby rejecting any additional or inconsistent terms or conditions contained in or incorporated by reference in any purchase order or other document submitted by Buyer.
2. Matters Pertaining to Contract Formation
a. Statements By BrightVault. Unless expressly stated otherwise in writing, all statements made by BrightVault including without limitation any Product or Service descriptions in marketing materials are non-binding, subject to change and without obligation. BrightVault reserves the right to revise and change any and all Product and Service descriptions at any time.
b. Purchase Orders. BrightVault's receipt of a written order (“Purchase Order”) from Buyer constitutes a binding offer from Buyer to enter into a binding agreement with BrightVault.
c. BrightVault's Acceptance. BrightVault may accept or reject Buyer’s Purchase Order(s) in its sole discretion. If BrightVault accepts a Buyer’s Purchase Order, such acceptance (herein called “Acceptance”) requires written communication from BrightVault within two days after receipt of such order. BrightVault's issuance of an invoice referencing a specific Buyer’s Purchase Order within two days after receipt of such order shall be deemed Acceptance of such Buyer’s Purchase Order. Without Acceptance of a Buyer’s Purchase Order being delivered to Buyer within two days after BrightVault's receipt of Buyer’s Purchase Order, BrightVault shall be deemed to have rejected the Buyer’s Purchase Order.
d. Other Specific Matters
i. Unless otherwise expressly stated in an Acceptance, or in technical product descriptions or data sheets referenced in an Acceptance, or in separate written communication from BrightVault signed by an authorized representative subsequent to Acceptance, any and all information regarding properties and characteristics of Products or Services are for illustrative purposes and not binding. Likewise, public statements, recommendations or advertisements do not constitute contractual statements of any nature including but not limited to the nature or quality of a Product or a Service.
ii. All terms relating to quantities and time of delivery of Products or Services set forth in an Acceptance are subject to availability, technical feasibility, and timely delivery of components to BrightVault by its suppliers. BrightVault reserves the right to deliver Products or perform Services with reasonable deviations from dimensions, weight, nature or quality of such Products or Services confirmed in any Acceptance. BrightVault specifically disclaims any warranty to include specific components in any Product or Service. BrightVault, in its sole and absolute discretion, has the right to select the components of each Product or Service in accordance with technical feasibility and availability.
iii. Any performance or profitability calculations available to Buyer from BrightVault’s website or other marketing materials or documents, or derived from any software programs provided by BrightVault , are illustrative in nature and not binding upon BrightVault. Buyer acknowledges, agrees and understands that any results derived from such calculations may substantially deviate from actual performance or profitability.
e. Proprietary Rights.
Each Product is protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All right, title and interest in the intellectual property embodied in a Product and in the methods of manufacturing and assembling the Product belong solely and exclusively to BrightVault.
f. Specific Provision Re: Intellectual Property Rights.
All Intellectual Property Rights produced from or arising as a result of the performance of these Terms of Sale shall, so far as not already vested, become the absolute property of the BrightVault, and Buyer shall do all that is reasonably necessary to ensure that such rights vest in BrightVault by the execution of appropriate instruments, agreements and documents.
g. RoHS (“restriction of hazardous substances”).
BrightVault is aware of the European Union Directive 2002/95/ED (“Directive”) and its requirements on the restriction of the use of certain hazardous substances in electrical and electronic products and equipment. All internal process material fabrication, machining and finishing operations controlled by BrightVault are fully compliant with the Directive. However, notwithstanding the issuance of an Acceptance of a Buyer’s Purchase Order, if the Buyer specifies the material and type of finish used, then the Buyer shall be solely responsible for complying with the Directive since BrightVault will not have had control over material specification control.
h. Submitted Documents. Subject to any third party rights, BrightVault reserve all right, title and interest, including without limitation all intellectual property rights, patent rights, copyrights and trademark rights, in and to all documents, technical information, images, drawing, calculations and other information provided to Buyer and any and all intellectual property embedded therein. Without BrightVault's express written consent, Buyer shall not copy any document, technical information, image, drawing or calculation provided by BrightVault , reverse engineer any Product delivered by BrightVault, or otherwise attempt to circumvent BrightVault's right, title or interest in any of the foregoing
3. Prices; Terms of Payment; Holding Fee; Cancellation Fee
Prices. BrightVault communicates pricing to Buyers in various ways (e.g. quotes, estimates). However, unless otherwise stated in an Acceptance, prices to be paid per Payment Terms for Products. Unless agreed by the parties otherwise, terms of Payment for Products are (i) seventy-five percent (75%) of the purchase price within five (30) days after receipt of Acceptance by Buyer and (ii) twenty-five percent (25%) of the purchase price (2) two weeks (typical ship date of batteries and inverters to project) prior to installation and commissioning of system. For projects outside the continental United States, (25%) final payment is due (60) days prior to scheduled installation of the system. All purchases of BrightVault LITE systems are considered line-tems and therefore require payment in full prior to shipping.
Payment Terms for Services. Unless agreed by the parties otherwise, the terms of payment for any Service are (i) Seventy-Five percent (75%) of the service fee within five (30) days after receipt of Acceptance by Buyer (ii) twenty-five percent (25%) of the service fee immediately after the commissioning of the system. Commissioning of the system to be defined as installation of all components and tested working by BrightVault. Dealer Programming and other third party integration shall not be grounds for considering the system “Uncommissioned”.
Quoted Prices. All prices quoted in an Acceptance are net of taxes, customs, or other governmental charges, and are quoted as payable in United States dollars at BrightVault's place of business in Denver, Colorado. All prices are (i) F.O.B. Buyers Designated Shipping Point (destination), if shipped within the United States or (ii) EXW BrightVault's Designated Shipping Point (Incoterms 2010) if shipped internationally, excluding in each international instance packaging and transport. Any applicable taxes and other governmental charges, including, without limitation, value added taxes, sales or use taxes, other local, state, provincial or federal taxes arising from the sale or delivery of the Products or Services will be stated separately on BrightVault's Invoice and will be payable in United States Dollars together with the purchase price for such Products or Services, unless Buyer provides a current and valid exemption certificate.
Price Adjustments. Prior to delivery, BrightVault's price for a Product or a Service may change due to adjustments in specifications, quantities, shipment arrangements, requested delivery dates, or other changes to conditions including but not limited to any cost increases that occur between the time of Acceptance and delivery. The final price in effect on the date of initial payment as stated in BrightVault's Invoice applies.
Checks, Wire Transfers & ACH Payments. Unless agreed by the parties otherwise, Payments by Buyer must be made by wire transfer or ACH transfer to the account designated by BrightVault. All prices are quoted, and must be paid, in United States Dollars, or as otherwise specified on the quotation. Any applicable wire fees or ACH fees by banking institutions are the sole responsibility of the Buyer.
Failure to Make Payment. If Buyer fails to make any Payment of an invoice according to its terms or upon such credit terms as expressly agreed to in writing by BrightVault, then, in addition to all other rights and remedies available to BrightVault under applicable laws, in contract or in equity:
(a) Buyer shall be responsible for any and all commercially reasonable charges, expenses or commissions incurred by BrightVault to stop delivery, shipping and storage of any Product or performance of any Service and in connection with the return or resale of any Product;
(b) BrightVault shall have the right to terminate its Acceptance and the Contract related to such Acceptance or to suspend further performance under the Contract; and
(c) Buyer shall be liable to BrightVault for all reasonable costs of collection, including but not limited to reasonable attorneys’ fees, restocking fees and other related costs.
Past Due Amounts. Past due amounts are subject to service charges of the lesser of 1.5% per month or the maximum rate allowed by applicable law. BrightVault shall have the right to reduce or change Credit Terms based on past due amounts.
No Withholding of Payment. Buyer shall have no right to withhold, offset against or suspend any Payment due BrightVault on account of any counterclaim that Buyer may have against BrightVault unless either (i) the amount of such counterclaim has been established pursuant to a final, non- appealable judgment issued by a court of competent jurisdiction or (ii) the withholding, offsetting or suspension directly relates to a Product or Service for which Buyer is obligated to make Payment and BrightVault has agreed to the withholding, offsetting and/or suspending of the Payment in writing.
BrightVault's Application of Payments. Notwithstanding any other directions by Buyer to the contrary, and except as otherwise agreed by BrightVault in writing, BrightVault will have the right to apply any Payment received from Buyer first to any outstanding interests and costs, if any, owed by Buyer to BrightVault and then to any other amounts owed by Buyer to BrightVault, in any order BrightVault determines, acting in its sole discretion.
International Buyers. In the event a Buyer’s Order relates to Products or Services to be delivered by BrightVault outside the United States, payment shall be made in immediately available funds, denominated in United States Dollars, and shall, upon the written request of BrightVault, be made to a paying agent designated by BrightVault. Buyer shall pay any costs charged by the paying agent.
Cancellations. In the event Buyer cancels a Buyer’s Order for BrightVault has delivered an Acceptance, Buyer shall pay one of the following fees (whichever is applicable) for purposes of reimbursing BrightVault for its reasonable administrative, engineering and storage, and re-allocation expenses associated with such cancellation:
(a) A 25% Cancellation Fee on the cost of the system will be charged upon the cancellation of a project. Refunds will be sent to the purchaser within 90 days. For cancellations after (60) days of deposit.
(b) For cancellations after (60) days BrightVault reserves the right to indefinitely extend the refund period to allow for allocation of equipment to upcoming projects, and will not refund any custom built equipment.
(c) Additionally, in the event of the cancellation of any Buyer’s Order, BrightVault expressly reserves the right to claim any damages in addition to the reimbursement of administrative expenses, travel expenses, etc.
4. Taxes. Prices do not include applicable taxes or duties. The buyer is solely responsible for paying all applicable taxes and duties. BrightVault will add sales taxes to the sales price where required by applicable law and Buyer will pay such taxes unless Buyer provides BrightVault with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its Payment to BrightVault, Buyer will take all reasonable steps to minimize such withholding tax, provide BrightVault with a receipt or certificate as evidence the tax has been paid, and reimburse BrightVault for the amount of withholding so that BrightVault receives Payment for the full value of the Purchase Order and Invoice.
5. Delivery, Delivery Dates and Partial Deliveries.
Engineering and Design Package Delivery Date. BrightVault will deliver an engineering and design packet within (10) business days of receipt of all required documentation in the project intake e-mail. If all documentation is not readily available, BrightVault, at its sole discretion may start the design packet with available information, however the 2 week time frame will be extended.
Smart Panels and Wire Trough
Dealer shall notify BrightVault 30 days in advance of when the electrician needs the smart panels and wiring trough to ship. Smart Panels will not be shipped without a completed engineering packet clearly outlining controlled loads and a meeting with the project electrician to confirm understanding of the electricians scope and panel installation.
Inverters and Batteries
Dealer is to notify BrightVault no sooner than (60) days in advance of when the project is expected to be ready for final installation and commissioning. BrightVault will schedule installation at this point in time and deliver Batteries and Inverters to the project. If BrightVault arrives on-site and the project is not ready for installation a minimum $2,500 fee will be charged for travel expenses. Additionally, if multiple trips are needed or requested to phase out installation, BrightVault reserves the right to charge the dealer for travel expenses. BrightVault will not make a site visit without a completed dealer site readiness checklist, or signed phased install agreement.
BrightVault's Compliance. BrightVault's compliance with a binding delivery date will be subject to (a) timely receipt of required product components by BrightVault, free of defect, and (b) timely and full performance by Buyer of its obligations under these Terms of Sale and under the Contract to which the delivery date applies. As to a Product, BrightVault’s shall be deemed to have complied with any binding delivery date if BrightVault makes the Product the subject of the binding delivery date available to Buyer at BrightVault Designated Shipping Point on or prior to the delivery date and communicates that fact to Buyer in writing. As to a Service, BrightVault shall be deemed to have complied with any binding delivery date if BrightVault attempts to perform the Service at the place of performance on or prior to the delivery date.
Partial Deliveries. BrightVault and Buyer may agree that partial deliveries or Products or Services under a Contract are acceptable. If so and unless otherwise agreed to in writing by BrightVault and Buyer, upon partial delivery of Product(s) or Service(s), Buyer shall be obligated to pay to BrightVault for that portion of the Products or Services so delivered a dollar amount equal to a reasonable proration of the total purchase price for such Product(s) or Services as reflected in the Contract; such reasonable proration to be determined by BrightVault, acting in its sole discretion.
5. Shipping: Transfer of Risk
BrightVault's Designated Shipping Point. Unless stated otherwise in an Acceptance, each delivery of Product, if within the United States, will be FOB from nearest BrightVault Warehouse location. If shipments are International, Buyer shall be the importer of record and shall be responsible for all import duties, taxes and any other expenses incurred, or licenses or clearances required.
Risk of Loss. Risk of loss with respect to any Product shipped in the continental United States shall pass to Buyer upon delivery at buyer’s designated ship to location. Any subsequent loss or damage to the Product will not relieve Buyer from its obligations. Buyer is solely responsible for costs of freight and insurance after BrightVault's delivery to the Product to Buyer at buyer’s Designated Shipping Point. If BrightVault incurs freight or insurance costs on Buyer’s behalf, Buyer must promptly reimburse BrightVault for such freight or insurance costs. For other shipments risk of loss shall pass to buyer at BrightVault’s Designated Shipping Point.
Handling of Shipments. For Continental United States Shipments, BrightVault will ship the product upon full payment of the system. For other shipments, BrightVault will notify Buyer when Products are available for shipment. If Buyer does not arrange for a freight carrier or freight forwarder to collect the Products within seven (7) calendar days following notification that the Products are available for shipment, BrightVault may, at its own discretion and at Buyer’s cost arrange for the Products to be collected by a freight carrier or freight forwarder for shipment to Buyer. Alternatively, BrightVault may choose to store the Products and may charge a storage fee. In the event that BrightVault chooses to store the Products in accordance with the preceding sentence, or in the event that the payment terms require payment prior to shipment and Buyer fails to provide such payment within seven (7) calendar days following notification that the Products are available for shipment, BrightVault may charge a storage fee in an amount up to 0.2% of the contract price for each day the Products remain unshipped.
Packaging. BrightVault shall have the right to select the type of product packaging used for shipping. BrightVault shall invoice Buyer, separately, for all packaging costs. Buyer shall handle or dispose of the packaging materials as Buyer determines.
Buyer’s Inspection. Buyer shall immediately inspect all Products upon arrival at the Destination while still in the shipping carrier’s truck or vessel and shall promptly notify the carrier and BrightVault, in writing, within 24 hours of any alleged defects or non-conformity. Buyer’s failure to inspect the Products while still in the shipping carrier’s truck or vessel, or failure to give written notice to the shipping carrier and BrightVault of any alleged defects or non-conformity promptly upon their arrival at the Destination, shall constitute Buyer’s irrevocable acceptance of the Products. BrightVault is not responsible for filing any claims shipped on Buyer’s freight accounts. Any claims arising out of Buyer arranged shipments are the responsibility of the Buyer.
6. Retention of Title; Security Interests
Retention of Title: BrightVault retains title to all Products delivered to Customer until Payment of BrightVault's Final Invoice and all other invoices associated with the Product delivered. Irrespective of whether title to a Product remains vested in BrightVault, risk of loss for that Product shall pass to Buyer as provided in Section 8.B.
Security Interest. Buyer hereby grants BrightVault a security interest in (i) all present and future Products sold or delivered by BrightVault to Buyer and (ii) all proceeds received by Buyer with respect to such Products, whether now owned and existing or hereafter acquired or arising. Buyer agrees, upon request by BrightVault, to execute promptly any documents and perform any other acts at Buyer’s sole expense that BrightVault deems necessary or advisable to confirm, continue, and/or perfect the security interest granted in this Section 9.B. In addition to and not in limitation or derogation of the foregoing, Buyer hereby irrevocably authorizes BrightVault to execute and file any one or more financing statements covering all the property the subject of the security interests granted in this Section 9.B.
Until Title Passes. Until title to a Product delivered by BrightVault passes to Buyer, (a) BrightVault shall have authority to make any and all filings with governmental agencies against Buyer or otherwise as BrightVault deems necessary or appropriate; (b) BrightVault shall have authority to retake, sell or otherwise deal with and/or dispose of the Product; (c) BrightVault shall be entitled, at any time and without the need to give notice, to enter upon any property upon which the Product is stored, or upon which BrightVault reasonably believes it to be kept; (d) Buyer shall store or mark the Product in a manner reasonably satisfactory to BrightVault indicating that title to the Product remains vested in BrightVault; and, (e) Buyer shall insure the Product for its full replacement value , and arrange for BrightVault to be included under the policy of insurance as a loss payee.
7. Use of Information and Software.
Use of Information. All devices, equipment, designs, (including drawings and plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by BrightVault in connection with the Products delivered or Services performed shall remain BrightVault's exclusive property. Buyer shall not disclose any such material to third parties outside the end user and construction team without BrightVault's prior written consent.
BrightVault's Ownership of Information. BrightVault will retain sole ownership of all discoveries, improvements, inventions, patents, trademarks, copyrights, know-how, trade secrets, or other intellectual property rights associated in any way with the Products delivered or Services performed. Buyer specifically agrees that all improvements, inventions, discoveries and copyright in works of authorship, including but not limited to those in formative stages made by either Party (either alone or jointly with others) improving upon or related to a Product shall from the time of conception, or in the case of works of authorship, from the time of creation, be the property of BrightVault.
Software. To the extent that the use of software is required for the operation of a Product delivered by BrightVault, to Buyer, BrightVault hereby grants Buyer a non-exclusive and non- transferable right of use of the software, including but not limited to its documentation for the sole purpose of using such software as may be required for the operation of the Product. Buyer has no right to use such software for any other purpose or to reproduce, reverse engineer, translate or convert the software from object code to source code.
8. Express Warranty. BrightVault provides a Limited Warranty (herein also called the Express Warranty) with respect to each Product.
a. THE LIMITED WARRANTY FOR EACH PRODUCT SHALL BE AS STATED IN DOCUMENTATION PROVIDED WITH THE PRODUCT. IF THERE IS NO SUCH DOCUMENTATION, THEN THE LIMITED WARRANT SHALL BE AS STATED ON BRIGHTVAULT’s WEBSITE.
b. THE LIMITED WARRANTY DOES NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS ACCIDENT, ABUSE, MISUSE, PROBLEMS WITH ELECTRICAL POWER, SERVICES NOT PERFORMED OR AUTHORIZED BY BRIGHTVAULT USAGES ON INSTALLATIONS NOT IN ACCORDANCE WITH THE PRODUCT INSTRUCTIONS, NORMAL WEAR AND TEAR, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED, INTENDED OR AUTHORIZED FOR USE WITH THE PRODUCT.
c. EXCEPT AS EXPRESSLY STATED ABOVE OR IN THE LIMITED WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRIGHTBAULT (INCLUDING BRIGHTVAULT'S AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT.
d. Notwithstanding anything to the contrary implied or stated in the Limited Warranty, BrightVault will not be liable for the failure of a Product to perform if:
1.) the failure was caused by neglect, misuse, or mistreatment by a person or entity other than BrightVault, including improper installation or testing, or for any Products that were altered or not wired or connected correctly with any source of electrical power in any way by a person or an entity other than BrightVault; or,
2.) The failure resulted from the Buyer’s design, specifications, or instructions for such Products or improper system design or installation.
Notwithstanding anything implied or stated to the contrary in the Limited Warranty, the Limited Warranty as to any Product shall not take effect for the Product unless Buyer has paid for the Product in a timely manner, consistent with these Terms of Sale.
Notwithstanding anything implied or stated to the contrary in the Limited Warranty, the Limited Warranty shall be void if Buyer fails to notify BrightVault of any apparent defects in the Product within ten (10) business days after delivery, or of any hidden defects within ten (10) business days after the defect has been detected.
9. Product Suitability. Because local safety standards and regulations vary significantly as to certain certification programs, BrightVault cannot guarantee that a Product will meet all applicable requirements in a specific locality into which the Product will be shipped, sold or used. Therefore, before purchase and use of a Product, Buyer must (a) review the Product application and whatever national and local code/regulations apply to the Product or the application and (b) verify that the use, application and installation of the Product will be in compliance therewith.
10. Matters Pertaining to Delays Defects and Liability:
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE TERMS, BRIGHTVAULT SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR DAMAGE OR INJURY TO PERSONS OR PROPERTY, OR FOR OTHER LOSS OR INJURY RESULTING FROM ANY CAUSE WHATSOEVER, ARISING OUT OF OR RELATED TO ANY PRODUCTS OR SERVICES SUPPLIED BY BRIGTHVAULT. IN NO EVENT WILL BRIGHTVAULT BE LIABLE FOR ANY LOSS OF REVENUE, OR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES. BRIGHTVAULT'S TOTAL LIABILITY WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID TO BrightVault FOR THE PRODUCTS.
Delays. In the event of a delay in delivery beyond a binding delivery date caused by BrightVault, and in full compensation of any and all claims and damages Buyer may have incurred resulting from such delay, BrightVault's liability shall be limited to a liquidated damage payment in an amount equal to 0.5% of the amount invoiced by BrightVault (as stated in BrightVault's Final Invoice) for the Products or Services for each week of delay caused by BrightVault, but in any case not more than an amount equal to 5% of the invoice amount (as stated in BrightVault's Final Invoice).
Defects. In the event of a defect in a Product supplied by BrightVault, Buyer’s sole remedy shall be, at BrightVault's costs and expense for BrightVault, in BrightVault's sole discretion, to either repair or replace the defective Product. In the event of a defect in a Service provided by BrightVault, Buyer’s sole remedy shall be BrightVault's re-performance of the Service.
Buyer to Provide Notice of Defects. Except for visible defects of Products and Services for which Buyer shall provide written notice to BrightVault immediately, Buyer shall provide written notice of any defect to BrightVault at the earlier of (a) within ten (10) days after discovery of such defect, or (b) twelve (90) months after the date of delivery.
BrightVault's Response to Notice of Defects. BrightVault has 60 days after receipt of the product to evaluate any Notice of Defect and provide a Root Cause Analysis of that defect to the Buyer. Once BrightVault has determined that there is a defect, should BrightVault be unable to repair or replace defective Product(s) or re-perform defective Service(s) so that the Product(s) or Service(s) conform to the Contract within thirty (45) days after written notice from BrightVault to Buyer of such defect, Buyer shall grant BrightVault a ten (45) day cure period in writing. If BrightVault fails to replace the defective Product(s) or re-perform the defective Service(s) so that the Product(s) or Services(s) conform to the Contract within such ten (45) day cure period, Buyer shall have the right to rescind the Contract and BrightVault shall promptly reimburse Buyer for all invoices paid to BrightVault by Buyer on account of such defective Product(s) or Service(s).
BrightVault's Liability to Repair, Replace or Re-Perform. BrightVault shall have no liability to repair or replace any defective Product or Service if
(a) Buyer fails to inspect the Product or the Service as required hereunder,
(b) Buyer fails to inform BrightVault about the defect(s) as required hereunder,
(c) Buyer fails to observe the operating and maintenance instructions (Warranty, Installation Manuals and Specification Sheets) provided by BrightVault relating to the Product,
(d) the Product or a part of the Product has been opened, modified, repaired, processed, replaced or installed by, or any other work has been performed in relation to or that affects the Product by, a person other than a person approved by BrightVault; or,
(e) any other act or omission has occurred that has resulted in the loss of the Product’s Express Warranty.
In the event BrightVault determines that an alleged Product or Service defect did not exist or, if the defect did exist, BrightVault has no liability for such defect, Buyer shall reimburse BrightVault for all costs and expenses incurred by BrightVault with respect to such repairing, replacing or re-performing.
Remedies Exclusive. TO THE FULLEST EXTENT PERMITTED BY LAW, THE REMEDIES SET FORTH IN THIS SECTION 15 FOR DELAYS OR DEFECTS SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER AND BUYER SHALL HAVE NO OTHER REMEDIES IN CONTRACT, TORT OR EQUITY UNDER APPLICABLE LAW.
Shipping Damages, Errors, Returns and Claim Policies. With respect to shipping damages, errors in shipment (e.g. overage, shortage or missing items), Returns and Claims related thereto, reference is made to BrightVault's Returns, Damages and Claims Policies that are set forth on its website; the policies being incorporated herein by reference.
11. Indemnification
Buyer’s Indemnification. Buyer agrees to defend, indemnify and hold BrightVault harmless from, against and on account of all bodily injury and property damage claims asserted by third parties as a result of Buyer’s negligence or intentional acts of omissions or Buyer’s Wrongful Acts; Buyer’s indemnification to include (not by way of limitation) claims of death, personal injury and property damage. The term “Buyer’s Wrongful Acts” includes (not by way of limitation): (A) any failure of Buyer to handle each of the Company’s Products consistent with its Express Warranty; (B) any failure by Buyer to install, or cause to be installed, any of the Company’s Products in accordance with their Express Warranties, Installation Manuals, Integration Guides and their specifications; and (C) any failure to have Company’s Products installed by an installer who has not been trained to install Company’s Products.
BrightVault's Indemnification. BrightVault agrees to defend, indemnify and hold Buyer harmless from, against and on account of any third-party claim alleging that a Product purchased by Buyer infringes upon a valid and enforceable United States patent, provided Buyer gives BrightVault written notice immediately when such claim is asserted, directly or indirectly. Notwithstanding the foregoing, BrightVault shall have no liability to Buyer if any patent infringement or claim thereof is based upon or arises out of (a) compliance with designs, plans or specifications furnished by or on behalf of Buyer; (b) use of a Product in a manner for which the Product was neither designed nor contemplated; or
(1) the claimed infringement of any patent in which Buyer or any affiliate or subsidiary of Buyer has any direct or indirect interest by license or otherwise.
12. BrightVault's Sales Support. Reference is made to BrightVault's website and BrightVault's Sales Support set forth on BrightVault's website. If the Buyer has any questions concerning any Product or Service the subject of a Contract between BrightVault and Buyer, it is recommended that Buyer access BrightVault's Sales Support by visiting BrightVault's website. Concerning installation of any Product not including BrightVault installation, the subject of a Contract between BrightVault and Buyer, BrightVault's installer Program sets forth a current list of installers (“Certified Installers'') that have been trained by BRIGHTVAULT to install BRIGHTVAULT LITE and any other self installed products. Products; each installer having the right to represent that it has a BrightVault Certification. ALTHOUGH EACH CERTIFIED INSTALLATION COMPANY HAS BEEN TRAINED AND HOLDS A BrightVault CERTIFICATION, BrightVault MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY INSTALLATION OF A BRIGHTVAULT PRODUCT PERFORMED BY AN INSTALLER OF THAT COMPANY AND DISCLAIMS ANY LIABILITY RELATING TO SUCH INSTALLATION; THERE BEING NO ASSURANCE THAT AN INSTALLER OF THE CERTIFIED COMPANY SELECTED BY BUYER WILL INSTALL ANY BRIGHTVAULT PRODUCT PURCHASED BY BUYER IN ACCORDANCE WITH THE INSTALLATION MANUAL, INTEGRATION GUIDE AND THE WARRANTY COVERING SUCH PRODUCT.
13. Default and Termination.
Default. The failure of either Party to comply with these Terms or any additional terms and conditions of a Contract between the Parties shall constitute a default (“Default”) under the Contract.
Notice of Default with Right to Cure. Upon Default by a Party (the “Defaulting Party”), the other Party (“Non-Defaulting Party”) shall deliver written notice (“Notice of Default”) to the Defaulting Party specifying the nature of the Default. The Defaulting Party shall have thirty (30) days from the date of delivery of the Notice of Default in case of non-monetary defaults and ten (10) days from the date of delivery of the Notice of Default in case of monetary defaults to cure the Default.
Termination. If the Default is capable of being cured within the applicable cure period and is not cured within such cure period, the Contract may be terminated by the Non-Defaulting Party. In the case of a non-monetary Default that cannot be cured within the applicable cure period, the Contract shall not be terminated as long as the Defaulting Party has commenced and is diligently pursuing curing the non- monetary default; provided that if such non-monetary Default has not been cured by on or before ninety
(90) days from the date of delivery of the Notice of Default.
14. Applicable Law, Venue, Jury Trial Waiver
Governing Law. These Terms of Sale and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN BRIGHTVAULT AND BUYERS, including their affiliates, contractors, and agents and each of their respective employees, directors, and officers (a “Dispute”) will be governed by the laws of the State of Colorado, without regard to conflicts of law. The UN Convention for the International Sale of Goods shall not apply.
Dispute Resolution. BrightVault and Buyer will attempt to resolve any Dispute through negotiation or by utilizing a mediator agreed to by the parties, rather than through litigation. The mediator shall be located in the State of Colorado. Negotiations and mediations will be treated as confidential. Unless otherwise agreed to by the parties, if the parties are unable to reach through mediation a resolution of the Dispute within sixty (60) days of notice of the Dispute to the other party, the parties may pursue all other courses of action available at law or in equity.
Venue. The parties agree that the venue for any Dispute shall be exclusively in the state or federal courts located in Denver, Colorado. The Parties agree to submit to the personal jurisdiction of such courts.
Waiver of Trial by Jury. AS PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BEFORE A JURY IN CONNECTION WITH ANY DISPUTE. A JUDGE SITTING WITHOUT A JURY SHALL RESOLVE DISPUTES. IF A COURT DETERMINES THAT THIS PROVISION IS NOT ENFORCEABLE FOR ANY REASON AND AT ANY TIME PRIOR TO TRIAL OF THE DISPUTE, BUT NOT LATER THAN THIRTY (30) DAYS AFTER ENTRY OF THE ORDER DETERMINING THIS PROVISION IS UNENFORCEABLE, EITHER PARTY SHALL BE ENTITLED TO MOVE THE COURT FOR AN ORDER COMPELLING ARBITRATION AND STAYING OR DISMISSING SUCH LITIGATION PENDING ARBITRATION. IF PERMITTED BY APPLICABLE LAW EACH PARTY ALSO WAIVES THE RIGHT TO LITIGATE IN COURT OR AN ARBITRATION PROCEEDING ANY DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.
If Waiver of Trial by Jury Not Permitted. If a claim, dispute, or controversy arises between the Parties with respect to a Product or Service delivered by BrightVault to Buyer, and only if a waiver of a trial by jury is not permitted by applicable law or a ruling by a court of competent jurisdiction, either Party may require that the Dispute be resolved by binding arbitration. By agreeing to arbitrate all Disputes, each Party gives up any right that the Party may have to a trial by jury as well as other rights that the Party would have in a court that are not available or are more limited in arbitration, such as the rights to discovery and to appeal.
Confidential Information. Confidential Information may only be disclosed to the receiving party’s personnel, professional advisors, agents, and subcontractors (“Representatives”), on a “need to know” basis in connection with the use of the Product. Representatives shall be bound to treat the confidential Information under terms at least as restrictive as those herein, and the receiving party shall be liable for unauthorized disclosures by its Representatives. Each party will use at least the same degree of care as its employees with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. The foregoing shall not apply to information that (i) is independently developed without the use of the other party’s confidential Information; (ii) has been obtained from a source which is not under a confidentiality obligation; or (iii) is or becomes publicly available without fault of the receiving party. If receiving party must disclose Confidential Information as required by law, it shall give reasonable prior notice to the disclosing party. These obligations shall continue for three (3) years from the initial date of disclosure, except that obligations related to information about a party’s intellectual property shall never expire.
16. Miscellaneous.
(a) Force Majeure Event/Contingencies. BrightVault will not be in breach of a Contract and will not be liable for any non-performance or delay in performance of the Contract if such non-performance or delay is due to a Force Majeure Event. BrightVault shall be entitled to a reasonable extension of its obligations under the Contract if a Force Majeure Event. If, with respect to fulfilling a specific Contract, a delay arising out of a Force Majeure Event persists for a period of time that BrightVault considered unreasonable, BrightVault may, without liability on its part, terminate the Contract. In the event of a shortage of components due to a Force Majeure Event, BrightVault may, at its sole discretion, allocate Product production and deliveries.
(b) Compliance with Laws. In performing its obligations under these Terms of Sale, each party agrees to comply with all laws and regulations applicable to such party including the customs and export control laws and regulations of the United States and the country in which the Product(s) are delivered. Buyer is subject to and solely responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. No Product may be used, sold, leased, exported, re-exported, or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end-user, end-use, and end-destination restrictions, and prohibitions on dealing with sanctioned individuals and entities including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce Denied Persons List. Buyer represents and warrants that Buyer is not subject or a target of, and that Buyer is not located in a country or territory that is the subject or target of, economic sanctions of the United States and other applicable jurisdictions.
(c) Relationship of Parties. Nothing contained in these Terms of Sale shall be construed as establishing or implying any partnership or joint venture between the parties; and, nothing in these Terms of Sale shall be deemed to construe either of the parties as the agent of the other.
(d) Assignment. Buyer may not assign its rights to purchase a Product to any third party unless previously consented to in writing by the BrightVault. No such assignment shall relieve Buyer from its obligations under these Terms of Sale.
(e) Waiver. The failure by either party to enforce at any time or for any period any provision of these Terms of Sale shall not be a waiver of such provision or of the right at any time subsequent time to enforce such provision.
(f) Notices. Any notice to BrightVault relating to a Product or these Terms of Sale must be in writing and sent by registered or certified mail (postage prepaid first-class mail and return receipt requested) by overnight delivery service or by electronic mail to the address below, and will be effective upon receipt.
If by registered or certified mail:
BrightVault, Inc.: Attention: Director of Operations
7000 N. Broadway Ste 108, Denver, CO, 80221
If by email:
(g)Entire Agreement. These Terms of Sale shall apply to each purchase and sale of a Product. Each party is relying on its own judgment and due diligence and expressly disclaims reliance upon any representation or statements not expressly set forth in these Terms of Sale.
(h)Severability. If any provision of these Terms of Sale is found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of the provisions of these Terms of Sale will remain in full force. No rights may arise by implication or estoppel, other than those expressly granted herein.
(j) Buyers Located Outside the United States or Serving Markets Outside the United States. If Buyer is located outside of the United States or serving markets located outside of the United States, Buyer must not seek to gain advantages through unfair, unethical or illegal business practices and must comply with all applicable anti-corruption laws, directives and regulations, such as the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act. Additionally, buyers must refrain from offering or making any improper payments of money (or anything of value) to government officials, political parties, candidates for public office or other persons. This includes a prohibition on facilitating payments intended to expedite or secure performance of a routine governmental action that the government official is already obligated to perform, even in locations where such activity may not violate local law.
Terms & Conditions
Second Version
Prepared On: 2-08-2025