1. Acceptance. The following terms and conditions of sale are applicable to all sales of Products or Services, and all Quotation, order acknowledgements, and invoices from Nothing But LED (“Nothing But LED”) and to all Purchase Orders from NBL customers (“Purchasers”) and are the only terms and conditions applicable to the sale of NBL Products or Services, except those relating solely to prices, quantities, delivery schedules, terms of payment, invoicing, shipping instructions, or descriptions of the products set forth in Purchaser’s Purchase Orders (collectively, “Purchase Order Terms”). Purchase Orders, if accepted by Nothing But LED, are accepted subject to the terms and conditions set forth herein. Nothing But LED HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS SPECIFICALLY AGREED TO BY Nothing But LED IN WRITING. Purchaser’s acceptance of Products or Services (“Products or Services”) called for in said Purchase Order shall constitute its acceptance of the following terms and conditions of sale (this “Agreement”). Any changes to these terms and conditions must be in writing and signed by Nothing But LED.1. Acceptance. The following terms and conditions of sale are applicable to all sales of Products or Services, and all Quotation, order acknowledgements, and invoices from Nothing But LED (“Nothing But LED”) and to all Purchase Orders from NBL customers (“Purchasers”) and are the only terms and conditions applicable to the sale of NBL Products or Services, except those relating solely to prices, quantities, delivery schedules, terms of payment, invoicing, shipping instructions, or descriptions of the products set forth in Purchaser’s Purchase Orders (collectively, “Purchase Order Terms”). Purchase Orders, if accepted by Nothing But LED, are accepted subject to the terms and conditions set forth herein. Nothing But LED HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS SPECIFICALLY AGREED TO BY Nothing But LED IN WRITING. Purchaser’s acceptance of Products or Services (“Products or Services”) called for in said Purchase Order shall constitute its acceptance of the following terms and conditions of sale (this “Agreement”). Any changes to these terms and conditions must be in writing and signed by Nothing But LED.
2. Quotation. Quotations are only valid in writing and for 30 days from the date of the Quotation unless otherwise notified. All Quotation by Nothing But LED are subject to change or withdrawal without prior notice to Purchaser unless otherwise specifically stated in the Quotation. Quotation are made subject to approval by Nothing But LED of Purchaser’s credit. Nothing But LED shall have no obligation to sell or deliver Products or Services covered by NBL Quotation unless and until Nothing But LED issues an order acknowledgement form or upon the shipment of Products or commencement of Services by Nothing But LED.
3. Prices. Prices are in U.S. Dollars and are subject to change without notice. Time of payment is of the essence. All orders are accepted subject to NBL price in effect at time of shipment.
4. Terms of Payment. The inspection rights granted to Purchaser will not affect or alter the payment terms or the timing of Purchaser’s payment obligations. Under no circumstances will Purchaser have a right of set-off. Payment is due before delivering the goods unless agreed in writing. If credit terms are approved by Nothing But LED, terms of payment are 30 days net from the date of NBL invoice. Purchaser agrees to pay interest on overdue invoices at the rate of 2 ½ % per month, but not higher than the highest rate permitted by law. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify Nothing But LED for all costs and expenses, including reasonable attorney fees, court costs, and associated expenses incurred by Nothing But LED. In the event of default, all future warranties are voided. 5. Credit Approval. All shipments to be made hereunder shall at all times be subject to the approval of NBL credit department. Nothing But LED may invoice Purchaser and recover for each shipment made pursuant to this Agreement as a separate transaction without regard to any other order or agreement with Nothing But LED, or if, in NBL sole judgment, the financial responsibility of Purchaser is or becomes unsatisfactory, then Nothing But LED may, at its option and without prejudice to any of its other remedies, (a) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, and / or (b) terminate all Purchase Orders of Purchaser.
6. Cancellation. Once Nothing But LED has either accepted a Purchase Order or has begun taking actions with respect to such Purchase Order, such Purchase Order cannot be canceled, terminated or modified by Purchaser in whole or in part except with NBL consent in writing and then only upon terms and conditions to be agreed upon which shall include protection of Nothing But LED against all losses. Purchaser shall indemnify Nothing But LED for any costs incurred, including material and labor costs, in connection with any Purchase Order that Purchaser desires to cancel, terminate or modify.
7. Inspection/Non-Conforming Shipments. Nothing But LED grants Purchaser the right to inspect Products for a period of five(5) business days immediately following delivery (“Inspection Period”). Purchaser must notify Nothing But LED of any Products that do not conform to the terms applicable to their sale within the inspection period, enclose a copy of the invoice on which the Products where purchased and afford Nothing But LED a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide Nothing But LED with notice of nonconformity within the Inspection Period, Purchaser shall be deemed to have accepted the Products. Purchaser will have no right to return any Product without NBL prior written authorization. Any return authorized by Nothing But LED must be made in accordance with NBL return policies then in effect and must be accompanied by a Returned Merchandise Authorization (“RMA”) from Nothing But LED. Purchaser will be responsible for all costs and expenses associated with any returns of Products and will bear the risk of loss or damage of such Products, unless Nothing But LED agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. Nothing But LED, in its sole discretion may reject any return of Product not approved by Nothing But LED in accordance with this paragraph or otherwise not returned in accordance with NBL then current-return policies.
8. Risk of Loss / Delivery. Unless other arrangements are made in writing, Nothing But LED anticipates use of common carriers for transport of Products. Purchaser shall assume all risk and liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Products illicitly after the delivery to the carrier. Unless mutually agreed upon, shipping dates are approximate and are based upon prompt receipt of all necessary information. Nothing But LED reserves the right to ship items in a single or in multiple shipments.
9. Damage. On Products shipped F.O.B. destination, Purchaser shall notify Nothing But LED and the delivering carrier within three(3) business days from date of receipt of Products, of any damage or shortage, and afford Nothing But LED a reasonable opportunity to inspect the Products. On Products shipped F.O.B. NBL warehouse, any loss occasioned by damage or shrinkage in transit will be for Purchaser’s account and claims for such loss shall be made solely against the carrier.
10. Limitation of Liability and Remedies. Nothing But LED SHALL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST Nothing But LED, FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON NBL NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. Nothing But LED WILL NOT BE LIABLE TO PURCHASER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE OF ITS PRODUCTS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE. IN NO EVENT WILL NBL LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SALE OF PRODUCTS BY Nothing But LED EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
11. Inventory. Nothing But LED is under no obligation to take back material for credit or exchange when the reason for the return was anything other than the NBL error. At NBL sole discretion, should a return of this nature be authorized, the Products returned must be in its original packaging, and be in resalable condition. A minimum 15% restocking charge will apply as well as any additional charges necessary to restore Products to a resalable condition.
12. Technical Data. All physical properties, statements and recommendations are either based on the tests or experience that Nothing But LED believes to be reliable, but they are not guaranteed.
13. Product Use. Purchaser is solely responsible for determining whether any Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of NBL Products, Nothing But LED is not responsible for the results or consequences of use, misuse, or application of its Products by anyone.
14. Taxes. Purchaser shall pay to Nothing But LED, in addition to the purchase price, the amount of sales taxes which Nothing But LED is required to collect in connection with the Products or Services sold to Purchaser. Failure by the Nothing But LED to collect any such fees or taxes shall not affect Purchaser’s obligations hereunder and Purchaser shall fully defend, indemnify, and hold harmless Nothing But LED with respect to such tax obligations. Purchaser must provide the copy of sales tax-exempt certificate to quality for exemption.
15. Ownership of Intellectual Property. All drawings, know-how, designs, specifications, developments, processes, copyrights and other information or Intellectual Property disclosed or otherwise provided to Purchaser by Nothing But LED and all rights therein (collectively, “Intellectual Property”) will remain the property of Nothing But LED and will be kept confidential by Purchaser in accordance with these terms and conditions. Purchaser shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to Nothing But LED upon written request from Nothing But LED. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property.
16. Confidential Information. All information furnished or made available by Nothing But LED to Purchaser in connection with the subject matter of this Agreement or of Purchaser’s Purchase Order shall be held in confidence by the Purchaser. Purchaser agrees not to use such information or disclose such information to others without NBL prior written consent. The obligations in this paragraph will not apply to any information which (a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Purchaser of any obligation herein, (b) the Purchaser can show by written records was in the Purchaser’s possession prior to disclosure by Nothing But LED, or (c) is legally made available to the Purchaser by or through a third party having no direct or indirect confidentiality obligation to Nothing But LED with respect to such information.
17. Infringement and Indemnification. (a) Except as set forth below, Nothing But LED agrees to defend, indemnify and hold the Purchaser harmless against any claims, costs, damages, liability and expenses resulting from actual trademark, or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign, that may arise from the sale of Product that is owned by Nothing But LED and that pertains to the subject matter of this Agreement (provided that Product is not modified in any way by the Purchaser or any other party, and that the Product is used in the manner intended by Nothing But LED). If a suit or claim results in any injunction or any other order that would prevent Nothing But LED from supplying any part or Product falling under this Agreement, or if the result of such a suit or claim would, in the reasonable opinion of Nothing But LED, otherwise cause Nothing But LED to be unable to supply such parts or Products, Nothing But LED shall have the right, at its option, if it so chooses, to do one or more of the following: (i) secure an appropriate license to permit Nothing But LED to continue supplying said parts or Products to Purchaser; (ii) modify the appropriate part or Product so that it becomes non-infringing; (iii) replace the appropriate part or Product with a non-infringing but practically equivalent part or Product; or (iv) if the Nothing But LED cannot reasonably accomplish the actions specified in subparagraphs (i) – (iii), then in NBL sole discretion, Nothing But LED may discontinue selling the part or Product without any further liability to Purchaser. (b) Purchaser agrees to defend, indemnify and hold Nothing But LED harmless against any claims, costs, damages, liability and expenses resulting from actual or alleged patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign, that may arise from the making, using or selling of any part or Product or using any process that is owned by the Purchaser or is designed or specified by the Purchaser and that pertains to the subject matter of this Agreement. (c) If any claim is made by a third party on the basis of which indemnification may be sought under this paragraph, the party entitled to indemnification (the “Indemnified Party”) shall give written notice of such claim to the party liable for such indemnification (the “Indemnifying Party”) promptly after the Indemnified Party has actual notice of such claim. The Indemnifying Party shall have the right to defend and/or settle such claim at its expense, provided that it does so diligently and in good faith. The Indemnified Party shall cooperate with such defense and/or settlement and shall have the right to participate in (but not to control) such defense and/or settlement at its expense. No settlement shall be entered into unless the Indemnified Party shall be released from all liability for such claim.
18. Force Majeure. Nothing But LED shall not be liable for failure to perform or delay in performance or delivery of any Products or Services due to (a) fires, floods, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, acts of precedence or priorities granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause NBL the control of Nothing But LED. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable Nothing But LED to perform. Nothing But LED may, during any period of shortage due to any of the above circumstances, allocate its available supply of Products or Services among itself and its Purchasers in such manner as Nothing But LED, in its judgment, deems fair and equitable.
19. Assignment and Delegation. No assignment of any rights or interest or delegation of any obligation or duty of Purchaser under these terms and conditions, NBL Quotation, order acknowledgement, or invoice, or Purchaser’s Purchase Order may be made without the prior written consent of Nothing But LED. Any attempted assignment or delegation will be wholly void and totally ineffective for all purposes.
20. Integration Clause. These terms and conditions, together with NBL Quotation, order acknowledgement and invoice to a Purchase Order accepted by Nothing But LED, constitute the entire contract of sale and purchase between Nothing But LED and Purchaser with respect to the Products covered by this Agreement, and supersedes any prior agreements, understandings, representations and Quotation with respect thereto. No modification hereof shall be of any force or effect unless in writing and signed by the party claiming to be bound thereby.
21. Waiver. No failure of Nothing But LED to insist upon strict compliance by Purchaser with these terms and conditions or to exercise any right accruing from any default of Purchaser shall impair NBL rights in case Purchaser’s default continues or in case of any subsequent default by Purchaser. Waiver by Nothing But LED of any breach by Purchaser of these terms and conditions shall not be construed as a waiver of any other existing or future breach.
22. Limitation of Actions. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these terms and conditions by Nothing But LED shall be barred unless commenced by Purchaser within one (1) year from the accrual of such cause or action.
23. Litigation Costs. If any litigation or arbitration is commenced between Nothing But LED and Purchaser concerning any provision of this Agreement, the party prevailing in the litigation or arbitration is entitled, in addition to such other relief that is granted, to a reasonable sum as and for their attorney’s fees in such litigation or arbitration, provided that if each party prevails in part, such fees shall be allocated in such manner as the court or arbitrator shall determine to be equitable in view of the relative merits and amounts of the parties’ claims.
24. Choice of Laws. Any dispute arising out of or related to this Agreement, shall be governed by and construed according to the laws of the State of Georgia and litigated exclusively in a state or federal court located in Atlanta Georgia. The parties hereby agree to the exclusive jurisdiction and venue of such courts.
25. Jury Waiver. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a Court of competent jurisdiction.
26. Severability. If any provision herein shall be held to be unlawful or unenforceable, the remaining provisions herein shall remain in full force and effect.