BRIGHTON SCIENCE EQUIPMENT PURCHASE TERMS AND CONDITIONS
These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods by Brighton Technologies, LLC DBA Brighton Science ("Brighton Science") to the addressee in the attached Quotation ("Purchaser"). The accompanying Quotation (the "Quotation" and these Terms, collectively, are referred to as this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreement s, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Purchaser's general terms and conditions of purchase regardless whether or when Purchaser has submitted its purchase order or such terms. Fulfillment of Purchaser's order does not constitute acceptance of any of Purchaser's terms and conditions and does not serve to modify or amend these Terms.
The Parties agree as follows:
1. SHIPPING AND PAYMENT TERMS
The Goods will be delivered within a reasonable time after the receipt of Purchaser's purchase order. Brighton Science shall not be liable for any delays, loss or damage in transit. Shipping terms are FOB Cincinnati, Ohio. All shipping costs are the responsibility of Purchaser. This includes carrier fees and all import/export fees (duties, customs, brokerage, etc.). Most purchasers prefer to use their own shipping accounts to simplify the process and take advantage of company specific discounts. Please include shipping carrier, account number and the zip code associated in the PO. For all international orders, the Purchaser’s purchase order should indicate the following Incoterms: "EX WORKS FACTORY", wherein the ''FACTORY' is the Brighton Science manufacturing facility at 4914 Gray Road Cincinnati, OH 45232, USA. Purchaser shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Purchaser. Purchaser assumes all responsibility for shipments of Goods requiring any government import clearance.
Payment terms are Net 30. Purchaser shall make all payments hereunder by wire transfer or company check in U.S. dollars. Purchaser shall pay interest on all late payments at the lesser of the rate of 1.0% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse Brighton Science for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
2. WARRANTY/LIMITATION OF LIABILITY
Brighton Science’s standard limited one-year warranty (“Limited Warranty”) is attached to this Quotation and incorporated in this document by reference. EXCEPT FOR THE LIMITED WARRANTY, BRIGHTON SCIENCE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
IN NO EVENT SHALL BRIGHTON SCIENCE BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BRIGHTON SCIENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL BRIGHTON SCIENCE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED $500,000, EXCEPT TO THE EXTENT SUCH LIABILITY ARISES FROM BRIGHTON SCIENCE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
3. INTELLECTUAL PROPERTY
Purchaser acknowledges that Brighton Science is the owners of all right, title and interest in and to the Goods (including any software embedded in the Goods), all prior and subsequent versions thereof, and all other intellectual property related to the Goods, including without limitation patents, designs, mask works, trademarks, know-how and other proprietary rights (collectively, the “Brighton Science Intellectual Property”), and that, Purchaser shall obtain no right whatsoever in the Brighton Science Intellectual Property except to the extent necessary to use the Brighton Science Intellectual Property exclusively in accordance with the Goods for their intended purpose. Purchaser Agrees to comply with terms and conditions of the End User License Agreement related to the software embedded in the Goods, such licenses are incorporated in these Terms by reference. Brighton Science shall have the right, in its sole discretion, to disclose, publish, and apply for and prosecute to issuance or grant, at its expense, under any applicable international laws or treaties, patent, copyright, design registration, or other intellectual property protection anywhere in the world, in connection with Brighton Science Intellectual Property. Purchaser agrees to use all commercially reasonable efforts and security precautions to protect the Brighton Science Intellectual Property from unauthorized access, reproduction or distribution.
4. REVERSE ENGINEERING
Purchaser shall not modify any of the Brighton Science Intellectual Property or attempt to reverse engineer, disassemble, or decompile any Brighton Science Intellectual Property, translate or create any derivative works, compilations, or collective works related thereto, or apply any process, technique, defeat device, circumvention mechanism or procedure to ascertain or derive the source code to the Brighton Science Intellectual Property. If Brighton Science, in its sole discretion, elects to modify the Goods or the Brighton Science Intellectual Property, or permit Purchaser to modify the Goods or the Brighton Science Intellectual Property, Purchaser agrees that all such modifications, alterations, and enhancements of the Goods and the Brighton Science Intellectual Property become the sole and exclusive property of Brighton Science, and Purchaser shall neither own or acquire any right, title, or interest in or to such modifications, and further that Purchaser shall promptly execute and deliver, or cause to be executed and delivered, all applications, assignments, or other instruments, and shall perform, or cause to be performed, such acts as Brighton Science may deem
necessary or advisable to perfect Brighton Science’ rights in such modifications, alterations and enhancements. Purchaser shall not use any other trademark, service mark, trade name, logo or symbol in connection with the Brighton Science Intellectual Property without the prior written consent of Brighton Science.
Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement. The covenants and conditions contained in the Agreement shall apply to and bind the Parties and the heirs, legal representatives, successors and permitted assigns of the parties.
6. GOVERNING LAW/FORUM SELECTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof ("Dispute"), shall be submitted to mandatory, final and binding arbitration before the International Chamber of Commerce, in accordance with such rules governing the Dispute are in effect at the time of filing of the demand for arbitration, with the arbitration administered by the International Chamber of Commerce, subject to the provisions of this Section 6. There shall be one arbitrator, who will be agreed to by the parties within 30 days of receipt by respondent of a copy of the demand for arbitration. If the parties cannot agree on an arbitrator within the time period specified then, at the request of either Party, such arbitrator shall be appointed by the International Chamber of Commerce. The language of the arbitration shall be English. The place of arbitration shall be London, England. The arbitration shall be the sole and exclusive forum for resolution of the Dispute, and the award shall be in writing, state the reasons for the award and be final and binding. Judgment thereon may be entered in any court of competent jurisdiction.
Any notice required or otherwise given to Brighton Science pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service to: Brighton Science, 4914 Gray Road Cincinnati, OH 45232; Contact: firstname.lastname@example.org. Brighton Science may change such addresses from time to time by providing notice to Purchaser.
8. AMENDMENT AND MODIFICATION; WAIVER
No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of an y right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Purchaser shall indemnify, defend and hold harmless Brighton Science and Brighton Science’s officers, directors, employees, agents, successors and assigns (each a “Brighton Science Indemnitee”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind , including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder incurred by Brighton Science or any Brighton Science Indemnitee in connection with any claim, suit, action or proceeding (each an “Action”) by Purchaser or any third party (other than an affiliate of Brighton Science or any Brighton Science Indemnitee) to the extent arising out of or relating to Purchaser’s breach of this Agreement or use of the Goods by or on behalf of Purchaser (or any of its representative), provided in no event shall Purchaser have any such obligation with respect to any Action which has been finally determined to primarily result from Brighton Science’s breach of this Agreement or Brighton Science’s gross negligence or willful misconduct.
10. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing and must be signed by both Brighton Science and Purchaser. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
BTG LABS SURFACE ANALYST™ LIMITED WARRANTY
A. This Limited Warranty provides the following assurance to the Purchaser of the Surface Analyst™ (“Equipment”).
(1) Brighton Science warrants to Purchaser for a period of one year from the date of delivery of the Equipment to Purchaser, if the Equipment fails to function within normal tolerances due to a defect in materials or workmanship, Brighton Science, will at its sole discretion either: (a) repair or replace any part or parts of the Equipment or (b) provide a functionally comparable replacement Equipment at no charge to Purchaser.
B. The Limited Warranty set forth in Section A (1), is expressly contingent upon the following conditions:
(1) The Equipment must be returned to Brighton Science in Cincinnati, Ohio, within thirty (30) days after discovery of the defect at Purchaser’s sole cost and expense.
(2) Any attempt by the Purchaser to repair or replace the Equipment, or any part thereof, will render this Limited Warranty null and void, and of no effect whatsoever. Further, any abuse or use of the Equipment in a manner other than as provided in any accompanying documentation, whether accidental, reckless or intentional will render this Limited Warranty null and void, and of no effect whatsoever.
C. This Limited Warranty is limited to its express terms. In particular:
(1) Except as expressly provided by this Limited Warranty, BRIGHTON SCIENCE IS NOT RESPONSIBLE FOR ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED ON ANY DEFECT, FAILURE OR MALFUNCTION OF THE EQUIPMENT, WHETHER THE CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
SPECIFICATIONS AND WARRANTY
(1) THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHETHER ARISING FROM STATUTE, COMMON LAW, CUSTOM OR OTHERWISE. NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO PATENTS OR ANY OTHER INTELLECTUAL PROPERTY SHALL EXTEND BEYOND THE PERIOD SPECIFIED IN A (1) ABOVE. THIS LIMITED WARRANTY SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO ANY PERSON.
(2) This Limited Warranty is made only to the Purchaser of the Equipment, and in no way can be assigned, transferred or in any other way conveyed to any other party. Any conveyance or attempted conveyance of this Limited Warranty will render this Limited Warranty null and void, and of no effect whatsoever.
(3) The exclusions and limitations set out above are not intended to, and should not be construed so as to contravene mandatory provisions of applicable law. If any part or term of this Limited Warranty is held to be illegal, unenforceable or in conflict with applicable law by a court of competent jurisdiction, the validity of the remaining portions of the Limited Warranty shall not be affected, and all rights and obligations shall be construed and enforced as if this Limited Warranty did not contain the particular part or term held to be invalid. This Limited Warranty gives the purchaser specific legal rights. The purchaser may also have other rights which vary from state to state.
(4) No person has any authority to bind, as to any representation, condition or warranty except this Limited Warranty.
(5) This Limited Warranty and all terms thereof will be governed by the laws of the State of Ohio. Any legal suit, action or proceeding arising out of or relating to this Limited Warranty shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in Hamilton County, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Service Subscription Definitions are also governed by the Brighton Science Terms and Conditions and can be found here: https://www.brighton-science.com/service-subscription-definitions.