Terms & Conditions

All orders for products by Customer shall be initiated by written purchase orders submitted to BRI at least sixty (60) days prior to the requested date of delivery for products set forth therein. All such purchase orders are subject to final acceptance by BRI in writing and must be based on the products, prices, estimates, quantities, and other relevant information in BRI -issued quotations. Such quotations shall expire within 30 days of issuance by BRI unless otherwise stated on the quotation. Each purchase order that has been so accepted by BRI (an “Order”) is subject to these Terms. Without limiting Section 9(f) below, any other terms or conditions set forth in any Order, including, without limitation, any legal terms and conditions in Customer’s purchase orders, shall not alter or supplement these Terms unless both parties have agreed in writing to modify these Terms. Orders will be billed at the prices in the Order.

All purchase orders issued by Customer shall include the following information: (i) products and quantities, (ii) prices (as such prices are stated in the applicable quotation issued by BRI), (iii) delivery instructions, and (iv) the BRI part number, (collectively, "Basic Order Terms"). All Basic Order Terms are fixed and final upon BRI's acceptance of the purchase order, after which Customer may not make any changes to the Order without BRI’s written acceptance thereof.

BRI will use reasonable efforts to meet delivery dates specified in the Order, but such dates are estimates only. BRI will not be liable under any circumstances for its failure to meet such delivery dates. Customer's sole and exclusive remedy for BRI not delivering the products in an Order by the delivery date in such Order, shall be for Customer to cancel the products in any such Order that have not been delivered by the date that is 30 days from the applicable delivery date.

Unless otherwise specified in an Order (i) BRI shall select the method of shipment and carrier, and (ii) costs for shipping shall be billed to and paid by Customer. All costs for freight, insurance, and other shipping expenses, including special packaging and/or handling requested by Customer, shall be the responsibility of and paid for by Customer. Each partial shipment made under any Order shall be treated as a separate transaction and payment therefor shall be made accordingly.

All shipments are F.O.B. origin. Therefore, risk of loss of and title to Products shall pass to Customer upon delivery to the designated carrier unless otherwise agreed in writing by BRI with the Customer in the Order.

Customer may return any damaged Products or Products from incorrectly fulfilled Orders by BRI (“Rejected Products”) in accordance with this Section INSPECTION, NOTICE OF DAMAGE.

Upon receipt of a Product from the carrier, Customer shall inspect the condition of the packaging and the Product and indicate any damage to the carrier on the delivery note, have the carrier's agent sign the document and, within two (2) days thereof, send such document by e-mail to cs@enlightedinc.com or fax 408-400-2950 to BRI’s customer operations team, together with the carrier's references, requesting a return material authorization (“RMA”) number. If Customer retains the Products without giving notice within the applicable designated period, Customer will be deemed to have waived its right to return such Products pursuant to this Section INSPECTION, NOTICE OF DAMAGE. Within ten (10) days of delivery of (a) Products from incorrectly fulfilled Orders or (b) any damaged Products suffering concealed loss or damage Customer must notify BRI in writing, including a request for a RMA number, if Customer wishes to be able to return such Products. Where Customer is permitted to request a RMA number, BRI will use commercially reasonable efforts to provide the RMA number to Customer within fifteen (15) days after receipt of any request therefor. Within ten (10) days after receipt of the RMA number, Customer shall return to BRI the applicable Rejected Products, freight prepaid, in its original shipping carton with the RMA number displayed on the outside of the carton. BRI reserves the right to refuse to accept any Rejected Products that do not bear an RMA number on the outside of the carton. If Customer properly returns any Rejected Products pursuant to this Section 1(f), BRI shall, at its option and expense and as its SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY with respect to such Rejected Products, either repair or replace such Rejected Products. BRI shall pay the shipping charges for sending Products back to Customer for properly returned Rejected Products; otherwise, Customer shall be responsible for such shipping charges.

Customer shall pay all invoices issued under these Terms by BRI in U.S. dollars within thirty (30) days from the date of the invoice. Invoices not timely paid are subject to an interest charge of 1.5% per month on any unpaid balance or the maximum rate allowed by law, (whichever is lower), which interest charges shall accrue beginning on the invoice due date. Customer shall pay all of BRI’s costs and expenses (including reasonable attorneys’ fees) to enforce and preserve BRI’s rights under this Section PAYMENT TERMS. Should Customer become delinquent in the payment of any sum due under these Terms, BRI shall not be obligated to continue performance under these Terms, including without limitation shipment of any previously accepted Orders. All invoices are due and payable per the Terms. In the case of a perceived error in a line item charge, Customer is obligated to advise BRI’s Finance and Accounting Department in writing (either by email at AR@enlightedinc.com or fax at (408) 400-2950; Attn: Finance and Accounting Department) of the nature of the perceived error within five (5) days of receipt of the invoice. A claim of an error does not relieve Customer of the absolute obligation to pay the remaining balance of the invoice in accordance with the standard terms of payment set forth in this Section PAYMENT TERMS. Upon review, BRI will have sole discretion to resolve the error; and the Customer expressly agrees to abide by BRI's decision. BRI will promptly advise Customer of its decision regarding any disputed items or charges.

Any sales, use, revenue, excise or other tax, fee, or charge of any nature imposed by any government or public authority (national, state, local or other) applicable to the Products, or the manufacture, sale, delivery, shipment or use thereof (“Taxes”), but excluding taxes payable by BRI that are measured by its income, shall be added to the purchase price (unless required by federal, state, or local law to be a separate line item on the invoice) and shall be paid by Customer. If, prior to delivery by BRI to the designated carrier (as set forth in Section FREIGHT above, Customer has provided BRI with a tax exemption certificate acceptable to the relevant authority to establish exemption from Taxes, BRI (relying on such certificate) will not include in the invoice for the Products those Taxes. In the event of any error in or revocation, inadequacy, or invalidity of the certificate, Customer shall pay on demand all Taxes that should have been paid (and any penalties, interest, costs and assessments) and shall indemnify, defend and hold BRI, its officers, directors, employees, and agents harmless against any claim, liability, damage, tax, penalty, interest, cost or assessment that arises as a result of or in connection with any of the foregoing

BRI reserves the right to make substitutions or modifications to the specifications or implementations of the Products, provided that these substitutions and modifications do not materially reduce overall performance thereof. BRI may from time to time discontinue Products or versions thereof, and stop supporting these Products and versions thereof within a reasonable time after discontinuance.

The Customer may request to cancel any Order in writing with a minimum of five (5) days’ notice prior to the requested delivery date set forth in the Order, provided that, except as otherwise expressly permitted herein, no Order shall be cancellable by the Customer without the written consent of BRI.

Subject to Customer’s compliance with these Terms, BRI hereby grants to Customer a non- exclusive, non-transferable (except in connection with the transfer of ownership of the applicable Product) license to use the Software solely as embedded in the applicable Products and solely to the extent necessary for the normal and intended uses of such Products. “Products” includes any software embedded therein and any updates thereto as made available to Customer by BRI during the Term (“Software”), however, none of BRI’s rights in or to any Software will be deemed to have been assigned or otherwise transferred to Customer under this Agreement, notwithstanding the fact that Products have been “sold” by Customer to BRI under these Terms.

As between BRI and Customer, BRI owns all right, title and interest in all intellectual property and other proprietary rights to the Software and any other technology or materials embedded in, incorporated into or provided with the Products and any accompanying documentation or information relating to or derived from the foregoing. Customer shall take reasonable precautions to prevent unauthorized access to and use of the Software and any documentation by third parties. Customer shall not, and shall not allow any third party to, (i) copy, decompile, disassemble, reverse engineer the Software, or otherwise derive the source code of the Software, or attempt to do so, except to the extent required by applicable law, or (ii) disclose, distribute, sell, sublicense, display, publish, modify, adapt, alter, translate, or create derivative works of the Software. Customer is prohibited from, and shall prevent any third party from, removing, covering or altering any of BRI's patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or their packaging and related materials. BRI reserves all rights in and to the Software not specifically granted to Customer under these Terms.

BRI warrants to Customer that the Products, except for (a) any Software and (b) any assembled products that are not BRI-branded (such in-scope Products, the “Equipment”) (1) are, at the time of delivery to Customer, free of material defects in workmanship or material, and (2) will, for a period of five (5) years from the time of delivery (the “Equipment Warranty Period”), conform to BRI’s applicable specifications for such Equipment when stored, installed, operated, maintained in accordance with any accompanying documentation and recommendations of BRI and when used under proper and normal use (the “Equipment Limited Warranty”).

If any Equipment does not materially conform to or is defective under the Equipment Limited Warranty during the Equipment Warranty Period (“Nonconforming Equipment”), BRI’S SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY will be for BRI (at BRI’s option and subject to applicable exclusions set forth in Section 3(c) below), within a reasonable time, to repair or replace the Nonconforming Equipment, provided that Customer (a) provides written notice of a covered, reproducible defect identifying the applicable Equipment during the Equipment Warranty Period promptly upon discovery thereof; (b) returns all applicable Products with Nonconforming Equipment to BRI promptly after such notice (but no more than thirty (30) days thereafter) pursuant to BRI’s RMA process described in Section INSPECTION, NOTICE OF DAMAGE above; and (c) has paid in full all amounts it owes BRI under these Terms. Any Products that are not eligible for return under, or are returned to BRI contrary to, this Section 3(a) will not be accepted by BRI and will be returned to Customer by BRI, freight collect, unless such Products are otherwise deemed by BRI to have been properly returned in accordance with Sections INSPECTION, NOTICE OF DAMAGE. or RETURNS below.

BRI warrants to Customer that the Software as embedded on the applicable BRI- branded. Product will operate substantially in compliance with the applicable Software specifications set forth in the documentation provided by BRI which may be updated by BRI from time to time (the “Software Specifications”) for a period of three (3) years from date of shipment (“Software Warranty Period”) when operated on equipment approved in the applicable documentation by BRI (the “Software Limited Warranty”). During the Software Warranty Period, BRI will provide Software updates, including without limitation bug fixes on an if-and-when available basis in accordance with BRI’s standard practices. If BRI provides any such Software updates to Customer, Customer will promptly install such Software in accordance with any accompanying documentation and the Software Limited Warranty will only apply to the updated version of the Software whether or not installed by Customer.

If any Software does not conform to the Software Limited Warranty during the Software Warranty Period (“Nonconforming Software”), BRI’S SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY will be for BRI (at BRI’s option and subject to applicable exclusions), within a reasonable time, to repair or replace the Nonconforming Software, provided that Customer (a) provides written notice of a covered, reproducible defect identifying the applicable Product during the Software Warranty Period promptly upon discovery thereof; and (b) has paid in full all amounts it owes BRI under these Terms. This Software Limited Warranty is not applicable to Software whereby the operation of such Software is adversely affected by external technical factors (including but not limited to conflicting software applications, network settings or other network capability issues) which prevent the Software from operating under normal conditions. BRI does not warrant any software or firmware embedded on any Products that are not BRI-branded.

The Equipment Limited Warranty and Software Limited Warranty do not apply with respect to: (a) any Equipment or Software in other than its original condition (reasonable wear and tear excepted); (b) any nonconformance or defect of any Equipment or Software caused by any modifications or alterations made to, or maintenance performed on, any Equipment or Software by Customer or any third party; (c) any nonconformance or defect of any Equipment or Software caused by third party software, hardware, equipment, or products used with, installed on, or accompanying the Equipment or Software; (d) any Equipment or Software that BRI reasonably determines has, by Customer or otherwise, been subjected to operating or environmental conditions in excess of limits established by the application specifications or documentation, or otherwise has been subjected to accident, mishandling or abuse, damage, misuse (including but not limited to use contrary to or not otherwise prescribed by the written specifications, or negligence), neglect or alteration, or improper or unauthorized installation, maintenance or repair, overloading, power failures, power surges, air conditioning failure, humidity, or fire, explosion, earthquake, or other force majeure events. The Equipment Limited Warranty and the Software Limited Warranty do not include or cover the cost of onsite services, labor, installation, commissioning, removal, reinstallation or re-commissioning and any other work except as expressly specified in these limited warranties.

If Customer believes that (i) a Product that is not BRI-branded that Customer has purchased pursuant to an Order (a “Third Party Product”) fails to conform to the applicable specifications or has material defects in workmanship or material or (ii) any software or firmware embedded on a Third Party Product fails to conform to the applicable specifications, then Customer may notify BRI in writing of the nature of the non- conformance or defect. If BRI believes that such Third Party Product or software or firmware embedded thereon may be covered by a warranty offered by the manufacturer thereof, BRI will provide to Customer information about the warranty and any steps Customer must take to receive the benefits of such warranty.

CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND BRI’S SOLE OBLIGATION FOR ANY WARRANTY CLAIM ARE STATED ABOVE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3, PRODUCTS, EQUIPMENT, AND SOFTWARE ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY WARRANTIES BY BRI OR ITS LICENSORS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE PRODUCTS, EQUIPMENT, OR SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR ANY WARRANTY THAT MIGHT OTHERWISE ARISE FROM A COURSE OF DEALING OR USAGE OF TRADE.

Customer may return Products within sixty (60) days of the original shipment date of such Products pursuant to BRI’s product return procedures then in effect, as long as such Products are new, unopened, and in the original shipping package and subject to BRI’s prior written consent. Products must be returned, transport prepaid, to the place designated by BRI in writing (no C.O.D. or Collect Freight accepted) in original boxes and packing material, unless otherwise agreed to in writing by BRI. The Products travel at the risk and responsibility of Customer and all risk of loss shall remain with Customer until the Products are returned to such place as designated by BRI in writing. For approved returns, Customer will receive only credit equal to the lesser of the Product's invoice price or current replacement value, less any applicable charges or fees. Such credit may be used to purchase Products from BRI. All such credits are (a) not redeemable for and have no cash value and (b) will expire within one (1) year of the date of issuance. Any Products that are not eligible for return under, or are returned to BRI contrary to, this Section 4 will not be accepted by BRI and will be returned to Customer by BRI, freight collect, unless such Products are otherwise deemed by BRI to have been properly returned in accordance with Section 3 above.

BRI will use commercially reasonable efforts to provide installation services to Customer for Products as and to the extent set forth in the applicable Order in accordance with this Section 5; provided, however, that if the parties have entered into a separate written agreement with respect to such installation services, the terms and conditions of such agreement will govern, and these Terms will not apply to, the provision of such installation services (the “Installation Services”).

BRI will perform any Installation Services solely for Products at the locations or premises of Customer set forth in the applicable Order, provided that Customer (i) directly provides, or pays all costs and expenses incurred by BRI in obtaining, any third party products that may be required for BRI to perform the Installation Services and (ii) provides access to its applicable premises and systems and equipment as necessary (as reasonably determined by BRI) for BRI to perform the Installation Services.

If BRI conducts an on-site assessment of the applicable premises for a location where Customer desires to receive installation services as requested by Customer prior to submitting an order for products, BRI will generate a quotation that includes an estimate of the fees payable by Customer for such installation services following its assessment of such premises. If Customer does not elect to have BRI, or if BRI declines to, conduct an on-site assessment of the applicable premises, then Customer will provide to BRI all necessary specifications and other details relating to the applicable premises to enable BRI to generate a quotation that includes an informed estimate of the fees for the applicable installation services. Prior to the expiration of a quotation provided by BRI, Customer may issue a purchase order to BRI based on such quotation, and BRI may accept the purchase order, in accordance with Sections ACCEPTANCE OF ORDERS and BASIC ORDER TERMS above. If the actual total fees for the Installation Services exceed, or BRI reasonably expects the actual total fees for the Installation Services to exceed, an estimate provided by BRI as set forth in the applicable Order, BRI will notify Customer and the parties will promptly engage in good faith discussions and mutually agree upon a fee that will be due and payable by Customer for the Installation Services in accordance with Section PAYMENT AND INVOICING below. BRI will invoice the Customer the applicable fees for the Installation Services upon obtaining an acceptance notification or deemed acceptance of the installation from the Customer. Customer shall pay the invoiced amount within thirty (30) days of the date of such invoice. Invoices not timely paid are subject to an interest charge of 1.5% per month on any unpaid balance or the maximum rate allowed by law, (whichever is lower), which interest charges shall accrue beginning on the invoice due date.

If during the thirty (30) days following completion of the Installation Services by Customer the installed Products fail to operate substantially in compliance with the applicable specifications provided by BRI due to improper installation by BRI, then BRI's sole and exclusive liability and Customer’s sole and exclusive remedy will be for BRI to send an authorized representative to the applicable premises of Customer to re-perform the Installation Services as necessary to correct the issue, provided that Customer promptly notifies BRI in writing of such improper installation and BRI determines that such claim is valid (“Limited Service Warranty”). The Limited Service Warranty does not apply to, and BRI shall not be liable for, any such issues caused by modifications to the Products, or services performed, by Customer or any third party without BRI's consent.

TERM: These Terms will commence as of the Effective Date and continue until terminated by either party pursuant to Section TERMINATION below (the “Term”).

TERMINATION: Either party may terminate these Terms without cause by providing thirty (30) days’ notice to the other party, provided that there are no outstanding unfulfilled Orders or unpaid fees pursuant to any Orders. BRI may also immediately terminate these Terms or cancel an Order if Customer (i) materially breaches these Terms and does not cure such breach within thirty (30) days from receipt of written notice of such breach from BRI or (ii) becomes insolvent or if voluntary or involuntary proceedings are commenced as to Customer under any bankruptcy or insolvency law, or upon default or breach by Buyer in its performance, payment or observance of any provision, obligation, liability, covenant, agreement or duty in or arising under the Order or pursuant to applicable law.

BRI'S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND/OR SALE OF THE PRODUCTS (INCLUDING ANY WARRANTY EXTENDED IN CONNECTION THEREWITH) SHALL BE LIMITED TO THE AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER FOR THE APPLICABLE PRODUCTS OR INSTALLATION SERVICES. IN NO EVENT SHALL BRI BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. IN NO EVENT SHALL BRI BE LIABLE TO CUSTOMER OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES (AND, DAMAGE TO OR LOSS OF USE OF ANY PRODUCT, LOST SALES OR PROFITS, OR DAMAGES OR LOSSES DUE TO A DELAY OR FAILURE TO PERFORM ANY WARRANTY OBLIGATION UNDER THESE TERMS OR ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, USE OF, INABILITY TO USE, OR THE REPAIR OR REPLACEMENT OF ANY PRODUCTS), HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE) AND WHETHER OR NOT BRI HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY

The Terms of sale between BRI and Customer will be governed by and construed in accordance with the laws of the State of California and applicable United States federal law, without reference to “conflicts of laws” provisions or principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties hereby agree that any dispute relating to these Terms or the Products shall be subject to the exclusive personal jurisdiction and venue of the federal or state court of competent jurisdiction sitting in Santa Clara County, California, and the parties hereby consent to such jurisdiction and venue and waive any obligations thereto. No dispute or legal action arising under these Terms, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.

NOTICE: Any notice required to be given hereunder shall be given in writing at the address of each party set forth below, or to such other address as either party may substitute by written notice to the other:

If to BRI: If to Customer:
Building Robotics Inc
Accounts Receivable
3979 Freedom Circle, Suite 210
Santa Clara, CA 95054

ASSIGNMENT: These Terms, together with any Orders, shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. Customer may not assign these Terms, together with any Orders, in any respect, by operation of law or otherwise including without limitation upon a merger or acquisition of all or substantially all of Customer’s stock or assets, without the prior written consent of BRI.
FORCE MAJEURE: In no event shall BRI be in default or otherwise liable for any delay in or failure of its performance of any of its obligations under these Terms if caused directly or indirectly by acts of God, fire, flood, strike or lockout or other labor dispute, accident, civil commotion, riot, war, governmental regulation or order, whether or not it later proves to be invalid, or from any other cause or causes (whether or not similar to any of the foregoing) beyond BRI's control.
WAIVER; SEVERABILITY: In the event of any default by Customer, BRI may decline to make further shipments without being in breach of these Terms. If BRI elects to continue to make shipments, BRI's action shall not constitute a waiver of any default or in any way affect BRI's remedies. In addition, either party’s waiver of any one provision under these Terms does not constitute as a waiver of any other provision. If any provision of these Terms is held to be illegal, invalid or unenforceable, then (i) such provision shall be reformed so as to cure or remove such defect and if not reformed shall be severed, (ii) the legality, validity and enforceability of the remaining provisions of these Terms shall not be affected or impaired, and (c) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the severed provision. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
LEGAL COMPLIANCE: Customer at all times shall comply with all applicable federal, state, local, and foreign laws and regulations.
GOVERNMENT CONTRACTS: Customer represents and warrants to BRI that none of the Products will be used in the performance of, or in connection with, any contract with the U.S. government or any of its agencies, departments, officers or other authorities. ENTIRE AGREEMENT; AMENDMENTS: These Terms, together with any Orders and any invoices issued by BRI pursuant to these Terms, constitute the entire agreement between the parties and supersedes all prior or contemporaneous communications, negotiations, arrangements and agreements, whether oral or written, between the parties with respect to the subject matter of these Terms. Captions and headings in these Terms are included for convenience of reference only and shall not affect the interpretation of these Terms. No change or modification to these Terms shall be effective unless specifically agreed to by the parties in a signed, written amendment.
REMEDIES CUMULATIVE: All rights, remedies and powers of the parties under this Agreement are cumulative, and the statement or description of any right, remedy, or power shall not limit or exclude any others provided or available to the parties, and may be pursued or enforced in any manner or order, all without election of remedy or other restriction.