General terms and conditions (US only)

These General Terms and Conditions (“Terms”) are by Brightpick, Inc., a Delaware corporation, with an address at 1830 Airport Exchange Blvd., Erlanger, Kentucky 41018 (“Brightpick”), to the purchaser (“Purchaser”) under the Quotation (defined below) to which these Terms are attached and incorporated by this reference. Brightpick and Purchaser are sometimes referred to herein individually as a “Party,” and collectively as the “Parties.”

1. Products and Services. 

Subject to these Terms, Brightpick agrees to sell and Purchaser agrees to purchase the equipment, components, accessories, materials and software (the “Products”) and related services undertaken by Brightpick (“Services”) meeting the pricing and specifications as mutually agreed upon between the Parties pursuant to these Terms. 

2. Purchase Orders. 

Brightpick shall deliver a written quotation to Purchaser describing the specifications, pricing and quantity of Products and Services available for purchase (“Quotation”). Purchaser shall purchase Products and Services from Brightpick by submitting a signed purchase order for such Products and Services on a written or electronic form which shall include, without limitation, the (i) delivery date; (ii) shipping location; and (iii) Purchaser’s billing address (“Purchase Order”). These Terms and the terms of the Quotation shall control over any conflicting or contrary terms of a Purchase Order. A Purchase Order is deemed accepted and binding upon Brightpick only if Brightpick (i) signs and returns a written order confirmation to Purchaser; (ii) begins performance; or (iii) otherwise acknowledges the Purchase Order by email, facsimile or other commercially reasonable means. Brightpick’s proposal, offer or acceptance is conditioned on Purchaser’s acceptance of these Terms. Purchaser shall sign and return a written acknowledgement of receipt of these Terms included with the Quotation, but Purchaser’s submission of a Purchase Order to Brightpick shall serve as conclusive evidence of Purchaser’s acceptance and acknowledgement of these Terms and the terms of the Quotation. Except as expressly provided in these Terms or otherwise agreed upon by the Parties in writing, Purchaser’s submission of a Purchase Order to Brightpick shall be binding upon Purchaser, and Purchaser shall not be permitted to cancel or terminate such Purchase Order once submitted.

3. Governing Terms.  

The Parties intend for the express terms and conditions contained in these Terms (including any schedules and exhibits hereto), and in any Quotation, Purchase Order, order confirmation, signed addenda or any other documents required to be delivered in connection herewith which are consistent with and subject to these Terms (collectively, the “Related Documents”), to exclusively govern and control each of the Parties’ respective rights and obligations regarding the purchase and sale of the Products and Services. Notwithstanding the foregoing, if any terms and conditions contained in a Quotation, Purchase Order or other Related Documents conflict with any terms and conditions contained in these Terms, the applicable term or condition of these Terms shall prevail and such contrary terms will have no force or effect. Except for such contrary terms, the terms and conditions of all Quotations, Purchase Orders and other Related Documents are incorporated by reference into these Terms.

4. Pricing and Payment

4.1 Purchase Price. The total purchase price for the Products and Services shall be set forth in the Quotation provided to Purchaser by Brightpick and incorporated into the Purchase Order (the “Purchase Price”). The Purchase Price is exclusive of all excise, sales, 

use and other taxes imposed by any federal, state, municipal or other government authority (collectively, the “Taxes”), all of which Taxes shall be paid by Purchaser unless Purchaser has provided Brightpick a valid certificate of exemption from any such Taxes on the purchase of the Products and Services.

4.2 Invoices. Brightpick shall issue periodic invoices to Purchaser for the Products and Services. Purchaser shall pay all invoices in full in U.S. Dollars, by bank or wire transfer, cash, or other method expressly permitted by Brightpick within thirty (30) days from the date of the invoice. Brightpick reserves the right to withhold warranty service hereunder to the extent any payments are overdue. Overdue payments shall be subject to finance charges, computed at a periodic rate equal to the lesser of (i) Libor + 2% per month; or (ii) the highest rate permitted under applicable law. All amounts owed by Purchaser shall be paid in full without setoff. Payments by means of checks are expressly disallowed and will not be accepted under any circumstances.

4.3 Security Interest. Purchaser hereby grants to Brightpick a first priority, purchase money security interest in the Products as collateral to secure the full payment and performance by Purchaser of its liabilities and obligations to Brightpick under these Terms and the Related Documents or otherwise. Until Brightpick receives full payment of the Purchase Price, Purchaser shall keep the Products free and clear of all liens and encumbrances and shall not sell or transfer any interest in the Products to any third party. Purchaser hereby authorizes and appoints Brightpick as Purchaser’s attorney-in-fact to execute, deliver and file at any time, any financing statement and/or take any other action permitted by applicable law to perfect, enforce, continue and amend, Brightpick’s security interest in any jurisdiction deemed appropriate by Brightpick. Purchaser also agrees to execute and deliver any other documents Brightpick may request in order to perfect Brightpick’s security interest in the Products.

5. Event of Default; Remedies. 

In the event Purchaser (i) fails to pay the Purchase Price or any other amount when due; (ii) breaches or fails to perform its other obligations under these Terms, the Related Documents or as otherwise mutually agreed between the Parties; (iii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iv) files or has filed against it, a petition for voluntary or involuntary bankruptcy, makes a general assignment for the benefit of its creditors, or applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction (each such event, an “Event of Default”), then Brightpick may take any and all actions available under law or equity to collect said amounts with a five (5) day prior written notice, including, but not limited to, suspending performance under any Purchase Order, enforcing its security interest, accelerating the payment of and declaring immediately due and payable any unpaid balance of the Purchase Price, referral to outside collection agencies and/or commencement of legal action. Brightpick’s rights shall be cumulative, and it shall not be required to have attempted to realize upon any Products pursuant to its security interest before taking any other collection actions. Brightpick may require that Purchaser assemble and return any or all of the Products subject to its security interest to Brightpick and, in the event Purchaser fails to return such Products, peaceably enter upon the premises where such Products are located, with or without legal process, and repossess such Products. Upon the occurrence of an Event of Default, Purchaser agrees to pay upon Brightpick’s demand: (i) all costs and expenses incurred by Brightpick or its assignee in connection with the enforcement of any remedies, including all expenses incurred in connection with the return, sale, release or other disposition of the Products; (ii) reasonable attorneys’ fees and other costs incurred by Brightpick or its assignee in enforcing or defending its rights and remedies under these Terms, the Related Documents or in any other written agreement between the Purchaser and Brightpick.

6. Shipping and Delivery. 

Unless otherwise agreed to by the Parties, all sales are FCA Brightpick manufacturer or distributor location (Incoterms 2020). Purchaser shall provide clear shipping instructions and delivery location to Brightpick.  Separate from and in addition to the Purchase Price, Purchaser shall be solely responsible for all costs and expenses relating to packing, transporting, loading and unloading, customs clearance, Taxes, tariffs and duties, insurance and any other similar financial contributions or obligations relating to the shipment of the Products. Without in any way limiting the generality of Section 8, Brightpick shall not be liable for any delay in delivery that is due to any cause beyond Brightpick’s reasonable control or any acts or omissions of Purchaser. In the event of such delay, time for delivery shall be extended for a period equal to the duration of the delay and Purchaser shall accept delivery when made. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of thirty (30) days, Brightpick may, at Brightpick’s option, by written notice to Purchaser, cancel that delivery and future deliveries without further liability or obligation to Purchaser of any kind. Products on which delivery is delayed at the request of Purchaser or due to any cause within Purchaser’s control may be placed in storage by Brightpick at Purchaser’s risk and expense. Purchaser shall be responsible for any installation and setup of the Products upon delivery, including all additional costs associated therewith.

7. Warranties.

7.1 Limited Warranty. Brightpick warrants solely to the original Purchaser that the Products are free from defects in material and workmanship and shall conform, in all material respects, to the specifications, quality, form and function requirements included in these Terms and Related Documents for a period of one (1) year from the date of delivery of the Products, conditioned, however, on normal use and care in compliance with all instructions and manuals for the Products. This limited express warranty does not cover loss or damages resulting from misuse, neglect, unauthorized alterations or disassembly, improper storage, installation or maintenance, accident, noncompliance with applicable laws or industry standards, force majeure or lack of training or instruction of users. This warranty shall be void and of no effect in the event that Purchaser attempts to make any repairs or alterations to the Products without Brightpick’s prior written consent, including without limitation, disassembling the Products or breaking or tampering with any seals on the Products.  This warranty is in lieu of all other warranties or guaranties, express, implied or statutory. This warranty applies only when the Purchaser has complied in full with these Terms, including all payments due. All Products identified in writing by Brightpick prior to its acceptance of a Purchase Order as experimental, developmental or a prototype are expressly excluded from this warranty. To the extent the Products include components or materials manufactured by others, Brightpick makes no warranty as to the condition or quality of any such components or materials, Brightpick shall not be liable for any manufacturing or design defects in such components or materials, and the Parties acknowledge that such components or materials may fail through no fault of Brightpick. Normal wear and tear is excluded, including any expendable items that comprise part of the Product (such as fuses, light bulbs and lamps). Brightpick does not warrant or guarantee that any Product will be secure from cyber threats, hacking or similar malicious activity. Products that are networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Purchaser and/or end user against unauthorized access.

7.2 Disclaimers. THE LIMITED WARRANTIES COMPRISE THE EXCLUSIVE REMEDIES AGAINST BRIGHTPICK, AND BRIGHTPICK MAKES NO OTHER REPRESENTATIONS OR WARRANTIES FOR THE PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, DESIGN, CONDITION, NON-INFRINGEMENT, LATENT DEFECTS OR COMPLIANCE WITH APPLICABLE LAWS, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. ANY STATEMENTS INCONSISTENT WITH OR IN ADDITION TO THE LIMITED WARRANTIES (INCLUDING ANY SUCH STATEMENTS IN THE RELATED DOCUMENTS) ARE UNAUTHORIZED AND SHALL NOT BE BINDING UPON BRIGHTPICK. EXCEPT AS EXPRESSLY CONTAINED HEREIN, PURCHASER IS ACQUIRING THE PRODUCTS AND SERVICES SUBJECT TO THESE TERMS AS IS, WITH ALL FAULTS AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND.

7.3 Warranty Claim.  (i) To apply a warranty claim, the Purchaser must contact Brightpick Support via Technical Support and specify all details of the claim. At the request of Brightpick, the Purchaser must provide a copy of the invoice to verify the Warranty claim.

Technical Support consists of expert consultation provided by Brightpick’s professionals regarding the claim who try to finally resolve the claim in its response through a consultation or via remote access. Brightpick does not guarantee that any claim raised via Technical Support will be finally resolved to Customer’s satisfaction during the Technical Support  consultation or in a specific time period.

(ii) Before sending the Product back to Brightpick for resolving the

Product Warranty claim, the Purchaser must obtain a signed claim report from Brightpick, which will be issued by Brightpick in electronic form (“Product Warranty Claim Report”). Any Products under Product Warranty claim can be shipped by the Purchaser back to Brightpick only when the claim report is issued by Brightpick; Brightpick is not obliged to accept any Products shipped without the Product Warranty Claim Report. (ii) The Product Warranty Claim Report will contain details on packaging and shipment of affected Products to be complied with by the Purchaser when returning the Products under the Warranty claim. If the conditions set by the Product Warranty Claim Report are not met by the Purchaser, Brightpick may reject the Warranty claim. 

(iii) The Product shall be shipped by Purchaser to Brightpick under Delivered at Place (DAP) Incoterms® 2020. Brightpick may reject the warranty claim, should Purchaser not follow warranty claim process specified herein; Occasionally, Brightpick may provide an explicit exception to exclude some items (for example, cables, if they are mounted in an inaccessible manner and are not required in claim investigation). This needs to be agreed before consignment of the Product.

(iv) Purchaser must pack claimed items adequately to prevent damage during shipment, preferably in the original undamaged packaging, including all original accessories; however, in accordance with the instructions of Brightpick, if applicable, Purchaser shall bear risk of loss or damage for Product in transit to Brightpick.

(v) Brightpick assumes risk of loss or damage of Products in Brightpick’s holding within the warranty claim procedure. Upon resolution of a warranty claim by Brightpick (in its own discretion), Brightpick returns the Product to Purchaser under Delivered at Place (DAP) Incoterms® 2020. In the absence of specific written instructions for the return of Product to Purchaser, Brightpick will select the carrier, however Brightpick shall not thereby assume any liability in connection with the return shipment.

7.4 Remedies

In the event that a Warranty Claim is covered by the applicable limited express warranty contained herein, Brightpick shall either i) repair or replace the Products or nonconforming components; or ii) provide Purchaser with a refund of all or part of the Purchase Price, in Brightpick’s sole discretion, and as Purchaser’s sole remedy under the warranty. Brightpick may elect to either repair the Products at Purchaser’s premises or require Purchaser to deliver the Products to an address designated by Brightpick for repairs, at Purchaser’s sole cost. Any Products that Brightpick authorizes to be returned for repair or replacement under this warranty shall be returned by Purchaser in the complete, original packaging, with all components, parts and attachments thereto. Brightpick shall confirm with Purchaser the procedure for obtaining a remedy under this warranty, and Purchaser shall take no further action until instructed by Brightpick. Unless Brightpick agrees otherwise in writing, the Purchaser will be responsible for any costs associated with: (i) gaining Brightpick access to the Product; (ii) removal, disassembly, replacement, installation, or reinstallation of any equipment, materials or structures to permit Brightpick to perform its Warranty obligations; (iii) transportation to the Brightpick factory or repair facility; and (iv) damage to equipment components or parts resulting in whole or in part from non-compliance by the Purchaser with the Agreement, especially provisions pertaining Warranties, or from their deteriorated condition. All exchanged Products replaced under this Warranty will become the property of Brightpick.

8. Limited Liability. 

NOTWITHSTANDING ANYTHING IN THESE TERMS OR THE RELATED DOCUMENTS TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL BRIGHTPICK BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM, RELATED TO OR CAUSED, DIRECTLY OR INDIRECTLY, WHETHER FORESEEABLE OR NOT, BY THE PRODUCTS, THE SERVICES, THESE TERMS, THE RELATED DOCUMENTS, THE USE OR INABILITY TO USE THE PRODUCTS OR SERVICES, THE RESULTS GENERATED FROM THE PRODUCTS OR SERVICES, ANY OTHER ACT OR OMISSION OF BRIGHTPICK, OR BASED UPON ANY OTHER LEGAL THEORY. FURTHER, IN NO EVENT SHALL BRIGHTPICK’S TOTAL LIABILITY UNDER THE RELATED DOCUMENTS EXCEED THE PURCHASE PRICE ACTUALLY PAID TO BRIGHTPICK BY PURCHASER FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE CLAIM FOR WHICH DAMAGES ARE BEING SOUGHT. NO ACTION MAY BE BROUGHT BY PURCHASER FOR ANY BREACH OF THESE TERMS OR THE RELATED DOCUMENTS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.

9. Intellectual Property.

9.1 Definition.  “Intellectual Property” shall mean all industrial and other intellectual property rights comprising or relating to patents, copyrights, trademarks, domain names, works of authorship, designs, concepts, data, developments, documentation, drawings, information, inventions, processes, techniques, software, technology, tools, files, records, schematics, specifications, trade secrets, and all other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout the world.

9.2 Use of Brightpick Intellectual Property. Purchaser acknowledges and agrees that Brightpick retains exclusive ownership of all Intellectual Property of Brightpick, no sale of any Products or Services shall be construed as granting to Purchaser by Brightpick any license or other right in or to any of its Intellectual Property. Purchaser shall not use any Intellectual Property of Brightpick for any purpose, including marketing and advertising, without the prior written consent of Brightpick. Brightpick reserves the right to refuse to permit the use of its Intellectual Property in Purchaser’s advertising for any reason. 

9.3 Third Party Intellectual Property Infringement. As Purchaser’s sole remedy with respect to any third party claim for intellectual property infringement, Brightpick shall defend, indemnify and hold the original Purchaser harmless from all third party claims, liabilities and damages finally awarded by a court of competent jurisdiction or as finally settled by Brightpick that are a direct result of the Products, when used in accordance with the standard, written, technical specifications that were provided or made available to Purchaser and for an application for which the Products were marketed and sold, infringing a valid United States patent (each an “IP Claim” and collectively “IP Claims”), provided that the original Purchaser shall have promptly advised Brightpick in writing of such IP Claim and shall cooperate fully with Brightpick in the defense or settlement of such IP Claim. Brightpick shall have sole control of the defense of all IP Claims and of all negotiations for their settlement or compromise. This indemnity shall not apply to IP Claims arising from the use or sale of Products manufactured in accordance with any designs or specifications provided by Purchaser, modifications made to the Products without Brightpick’s specific written approval or resulting from combinations with products not provided by Brightpick. 

10. Software License.  

Brightpick hereby grants to Purchaser a non-exclusive, non-transferable, limited license to use the software contained or embedded in the Products solely in conjunction with the Purchaser’s use of the Products and in compliance with any user agreement or other instructions provided to Purchaser. Accordingly, Purchaser shall not: (i) sell, rent or lease such software to any third party; (ii) reverse engineering or try to decompile the source code for such software; or (iii) provide access to such software or any information related thereto to any third party without the express written consent of Brightpick.

11. Confidentiality. 

11.1 Confidential Information.  For purposes of these Terms and the Related Documents, “Confidential Information” shall mean valuable information of a confidential, non-public or proprietary nature which includes, without limitation, information related to the Products, the Services, these Terms, the Related Documents, Brightpick’s business, organization, technology, marketing, sales, operations, assets, customer lists, pricing, know-how, trade secrets, research, databases, techniques, processes, designs, methods, software, employee lists, vendor information and Intellectual Property, whether in oral, written, electronic or other form, and whether or not marked, designated or otherwise identified as “confidential”. Purchaser acknowledges and agrees that pursuant to these Terms and the Related Documents, Confidential Information may be disclosed by Brightpick to Purchaser; that such Confidential Information shall be retained by Purchaser in strict confidence; and that Purchaser shall not disclose to any third party or cause anyone else to disclose such Confidential Information to any third party.

11.2 Exceptions.  Notwithstanding anything to the contrary, the above restrictions on disclosure shall not apply to: (i) Confidential Information which Purchaser can show by written evidence was known to it at the time of receipt thereof from Brightpick; (ii) Confidential Information which is subsequently obtained from third party sources other than Brightpick who are not bound by the confidentiality terms herein; or (iii) disclosure of Confidential Information required pursuant to a court order, administrative proceeding, if Purchaser promptly notifies Brightpick of the need for any such disclosure and gives Brightpick a reasonable time to oppose such process.

12. Compliance with Laws.  

Purchaser shall at all times comply with all applicable laws, rules, orders, and regulations of governmental authorities including, without limitation, the Export Administration Act and all other applicable import/export laws and regulations, and shall obtain and maintain all permits, licenses and authorizations required in connection with the purchase and use of the Products and Services as contemplated hereunder.

13. Indemnification By Purchaser.  

Purchaser agrees to defend, indemnify, and hold harmless Brightpick, including its subsidiaries, affiliates, parents, partners, their successors and assigns, and each of their past and present directors, officers, employees and agents (collectively, “Brightpick Indemnified Parties”), jointly and severally, from and against any and all damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terms or the Related Documents and the cost of pursuing any insurance providers, incurred or asserted against any Brightpick Indemnified Party (collectively, “Damages”) for (i) any breach or non-fulfillment of any representation, warranty or covenant set forth in these Terms or the Related Documents by Purchaser or its personnel; (ii) any negligent act or omission or willful misconduct of Purchaser or its personnel in connection with these Terms or the Related Documents; (iii) any bodily injury, death of any person or damage to real or tangible personal property caused by the Purchaser or its personnel; (d) any failure by Purchaser or its personnel to comply with any applicable laws; (e) any fraud or other intentional acts by Purchaser or its personnel; and (f) the use or operation of the Products by Purchaser or its customers, contractors, or any third party.

14. Representations and Warranties By Purchaser.  

Purchaser represents, and warrants and covenants to Brightpick that: (a) the Products and Services shall be used for business purposes, and not for personal, family or household purposes; (b) the full and accurate legal name of Purchaser is as stated on the Purchase Order; (c) Purchaser has the power and capacity to enter into each Purchase Order and all Related Documents; (d) these Terms and the Related Documents do not contravene or violate any laws applicable to Purchaser or any agreement Purchaser has with any lender, vendor, or other third party; (e) these Terms and all Related Documents have been duly authorized, executed and delivered by Purchaser and constitute valid, legal and binding agreements, enforceable against Purchaser in accordance with their terms; and (f) Purchaser is, and will remain, in compliance with all applicable laws.

15. Relationship of the Parties.  

The relationship between the Parties is solely that of vendor and vendee, and they are independent contracting parties. Nothing contained in these Terms shall be construed to (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, joint ventures, co-owners or otherwise; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.  

16. Force Majeure.  

Brightpick shall not be charged with default and Brightpick shall not be held liable due to any delays in performance hereunder due to any of the following: (a) acts of any federal, state, local or foreign government, including controls or materials, equipment, food or labor essential to completion of the work by reason of war, national defense, or any other national or state emergency; (b) causes not reasonably foreseeable by Brightpick at the time of acceptance of the Purchase Order which are beyond the reasonable control of, any through no fault or negligence of Brightpick; this shall include, but not be restricted to, acts of God or the public enemy, freight embargoes, court actions, fires, floods, epidemics, quarantines and strikes; weather of unusual severity such as hurricanes or tornadoes; nuclear radiation or radioactive contamination; and other like factors of unusual severity which directly affect or prohibit performance hereunder.

17. Miscellaneous.

17.1 Survival. Subject to the limitations and other provisions of these Terms, the representations and warranties of Purchaser contained herein, and Sections 7 – 14 of these Terms, as well as any other provision of these Terms or Related Documents that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of the relationship between the Parties. 

17.2 Waiver.  Either Party may waive, by written instrument and only by a written instrument, the performance by the other Party of any of the covenants or agreements to be performed by such other Party pursuant to these Terms and the Related Documents.  The failure of either Party at any time to insist upon the strict performance of any covenant, agreement or provision of these Terms or Related Documents or to exercise any right or remedy herein shall not be construed as a waiver or relinquishment of that Party’s right to insist upon strict performance of such covenant, agreement or provision at a future time.  The waiver by either Party of a breach of or noncompliance with any provision of these Terms or Related Documents shall not operate or be construed as a continuing waiver or a waiver of any other or subsequent breach or noncompliance hereunder.

17.3 Entire Agreement; Amendments.  These Terms, including any exhibits, schedules and the applicable terms of any Quotation, Purchase Orders or other Related Documents, constitute the entire understanding of the Parties with regard to the subject matter contained herein, and supersede all prior or contemporaneous agreements and understandings between the Parties, whether written or oral, express or implied. These Terms and the Related Documents may not be amended, modified or supplemented by the Parties except by written mutual agreement. 

17.4 Binding Effect; No Third Party Rights.  These Terms and the Related Documents shall bind, benefit, and be enforceable by both Parties and their respective successors, legal representatives and assigns, heirs, executors, administrators and personal representatives.  Except as may be expressly set forth in these Terms or the Related Documents, nothing herein will be construed to give any person other than the Parties any legal or equitable right, remedy or claim under or with respect to these Terms or the provisions of the Related Documents.  

17.5 Assignment: Purchaser shall neither delegate any duties nor assign any rights or claims under these Terms or the Related Documents without Brightpick’s prior written consent, and any such attempted delegation or assignment shall be void. Brightpick may, at any time, without prior notice, assign or transfer any of the Related Documents.

17.6 Severability.  In case any one or more of the provisions (or any portion thereof) contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of these Terms or the Related Documents, and these Terms and the Related Documents shall be construed as if such invalid, illegal or unenforceable provision or provisions (or portion thereof) had never been contained herein.  If any provision of these Terms or the Related Documents shall be determined to be unenforceable by a court of competent jurisdiction because of the provision’s scope, duration or other factor, then such provision shall be deemed to be enforceable to the greatest extent permitted under relevant law.

17.7 Governing Law; Choice of Forum.  These Terms and the Related Documents (including, without limitation, any and all demands, controversies, claims, actions, causes of action, suits, proceedings and litigation between the Parties arising out of or relating to these Terms, the Related Documents or the breach thereof, the construction of its terms or the interpretation of the rights and duties of the Parties) shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky, without giving effect to any choice or conflict of law provisions, principles or rules that would cause the application of any laws of any jurisdiction other than the Commonwealth of Kentucky.  All Parties consent to the jurisdiction of and agree that any such controversy or claim arising out of or relating to these Terms, the Related Documents or the breach thereof, shall be brought exclusively in the state or federal courts located within Kenton County, Kentucky.  Each Party hereby irrevocably waives, to the fullest extent legally permissible, any defense of inconvenient forum to the maintenance of such action or proceeding.  Each Party further agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

17.8 Waiver of Jury Trial.  Each Party acknowledges and agrees that any controversy that may arise under these Terms or the Related Documents, including any exhibits, schedules, attachments, and appendices attached to thereto, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the Related Documents, including any exhibits, schedules, attachments, and appendices attached to thereto, or the transactions contemplated hereby.

17.9 Construction.  Neither Party shall be deemed the drafter of these Terms or any Related Documents, and neither Party shall enjoy the benefit of any canon of construction requiring any ambiguity to be construed against the drafter.  The headings in these Terms or in any Related Document have been inserted and used solely for ease of reference and shall not be considered in the interpretation, construction or enforcement of these Terms or any Related Document.  Whenever a singular word is used, it also shall include the plural wherever required by the context and vice-versa.  All references to the masculine, feminine or neuter genders herein shall include any other gender, as the context requires.

17.10 Notices.  Except as otherwise stated herein, any notices required or permitted hereunder shall be given to Brightpick at the address specified above, to Purchaser at the address specified in the Purchase Order or at such other address as each Party shall specify in writing.  Such notice shall be deemed given upon personal delivery, by email if receipt is confirmed by the recipient or by certified or registered mail, postage prepaid, three (3) days after the date of mailing.

17.11 Counterparts.  Any Quotation, Purchase Order or other Related Document to be executed may be executed in any number of counterparts and any Party may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.  The signature of any Party to any counterpart transmitted by facsimile or electronic mail shall be deemed an original signature for all purposes..