Terms and Conditions of Design
Revision date: November 10, 2024
All transactions by and between Brightside Supply, LLC, and its affiliates, subsidiaries, successors, or assigns (collectively, "Brightside") and each of its clients for design services are governed by these Terms and Conditions of Design (the "Terms of Design"). In the event that there is an executed agreement between the parties governing the design services contemplated, then the executed agreement shall govern. Any proposal or document from a client that includes different or additional terms that vary from these Terms of Design are objected to and disallowed.
- Acceptance. All Design Services Proposals shall be subject to, and shall be conditioned upon, the Client’s assent to these Terms of Design, which shall be presumed from the Client’s acknowledgment of the Design Services Proposal, performance of services, and/or acceptance of payment. Any terms or conditions or .html links on any quote, order form, or other documents provided by the Client that conflict with these Terms of Design shall be null and void. The applicable Design Services Proposal, along with these Terms of Design, are referred to collectively as "the Agreement."
- Scope of Work. Subject to the Terms of Design, Brightside will perform the specified consultation, drawings, and documentation identified in the Design Services Proposal (the "Services") for the Client in connection with its future restaurants and/or other foodservice concepts (the "Project").
- Fees and Expenses. Brightside shall provide the Services for a fixed price equal to the price set forth in the Design Services Proposal (the "Fee"), and the Client shall pay each applicable Fee as set forth in the Design Services Proposal or in full within thirty (30) days following Brightside's delivery of all deliverables. Unless otherwise set forth in the Design Services Proposal, the Client agrees to reimburse Brightside for all out-of-pocket costs and expenses incurred by Brightside in the performance of the Design Services within thirty (30) days following receipt of invoice.
- Limitations of Service. The Client acknowledges and agrees that: (a) Brightside's services are solely design-oriented and do not include any architectural, mechanical, electrical, HVAC, or structural engineering services. Brightside is not licensed or certified to provide any architectural, mechanical, electrical, HVAC, or structural engineering services and expressly disclaims any responsibility or liability thereof. (b) The Client shall be responsible for obtaining all building permits that may be required under federal, state, or local laws or codes. (c) The Client will engage a licensed contractor, architect, engineer, or other specialist, as needed, to provide installation recommendations and execute any such work required in connection with the Project.
- Term and Termination; Survival. This Agreement will begin on the Effective Date of the Design Services Proposal and continue until the completion of the Project and payment of all Fees or upon thirty (30) days' advance written termination notice by either Party. Upon the expiration or termination of the Terms of Design, the Client will immediately remit full payment for all Services rendered and expenses incurred by Brightside. Any provision of the Terms of Design which by its nature would continue beyond the expiration or termination of the Terms of Design shall survive, including, without limitation, Sections 4-10.
- Ownership of Documents. Brightside and the Client agree that all drawings (including, without limitation, CAD files, schematics, estimates, specifications, and field notes) and any other work product furnished by Brightside to the Client for a Project pursuant to the Terms of Design (the "Documents") are Confidential Information and instruments of the Services for use solely with respect to such Project. Upon payment in full for the Services, the Client shall become the owner of all intellectual property represented in or by the Documents, provided that Brightside shall have an irrevocable license to use and reproduce the Documents and the ideas and designs contained therein for the completion of the Project.
- Confidentiality. Brightside and the Client agree that any Confidential Information exchanged ("Confidential Information" is information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as "confidential") shall be kept in strict confidence and not be used or disclosed except (i) as expressly permitted in the Agreement, (ii) as necessary to fulfill obligations or exercise rights under the Agreement, (iii) as reasonably necessary to complete the Project, or (iv) upon prior written consent of the other Party.
- Disclaimer and Limitation of Liability. Brightside makes no representations or warranties of any kind regarding the Services, the Documents, or the content thereof and disclaims all representations and warranties, express or implied, including implied warranties of merchantability and fitness for a specific purpose. The Client acknowledges that the deliverables, drawings, documentation, and Services provided by Brightside are only a suggestion, and implementation of such is taken solely at the Client’s own risk. The Client is obligated to ensure the structural integrity and safety of the Project and that the equipment fulfills the Client’s intended usage and complies with all applicable codes, regulations, and standards. Except for the Client’s obligations in Section 9, in no event shall either Party be liable to the other for any indirect, special, incidental, or consequential damages arising out of or related to the Terms of Design. Except for claims arising from Brightside’s gross negligence or willful misconduct, Brightside’s entire liability for all claims, losses, damages, and expenses resulting from the performance of the Services shall not exceed the total amount paid by the Client to Brightside for the applicable Services.
- Indemnity. The Client agrees to indemnify, defend, and hold Brightside and its affiliates, officers, directors, employees, agents, representatives, stockholders, and equity holders harmless from any and all damage, liability, or cost (including reasonable attorneys' fees and costs of defense) arising from or related to: (i) the Client’s modification of the Documents or its use of the Documents in connection with any other project without Brightside’s prior written consent; (ii) the negligent acts, errors, or omissions of the Client or the Client’s employees, other contractors, and the Client without regard to the alleged negligence of Brightside.
- Arbitration/Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State where the Brightside entity providing the Services is located, without giving effect to conflict of laws principles. The Parties agree that if unable to resolve any dispute after good faith attempts, any dispute arising out of or relating to this Agreement shall be resolved by binding arbitration under the Commercial Dispute Resolution Procedures of the American Arbitration Association. The arbitration award shall be a speaking award setting out the reasons in writing, but in no event shall the arbiter expand nor restrict any of the Parties’ respective rights or obligations beyond those provided in this Agreement. The prevailing party shall be awarded a proportion of its reasonable costs and expenses (including attorneys' fees) that it incurred in arbitrating the matter. Judgment upon the award may be entered in any court having jurisdiction. The exclusive site of such arbitration shall be in Cumming, Georgia.
- Miscellaneous. This Agreement constitutes the entire agreement between the Parties and supersedes all prior written and oral agreements and understandings between the Parties, with respect to the subject matter thereof. Neither Party shall assign this Agreement without the prior written consent of the other, except that Brightside may assign this Agreement to an affiliate. This Agreement is binding upon each Party, its successors, assigns, and legal representatives. Any notice or consent under this Agreement will be in writing to such an address that may be designated in writing by the receiving Party from time to time. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement may be amended only by a written instrument signed by both Parties. The Parties are independent contractors, and nothing in this Agreement or otherwise shall be deemed or construed to create any other relationship, including one of employment, joint venture, or agency. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall constitute one and the same instrument.
- Images. The Client hereby authorizes, without any further need for compensation or notice, Brightside to take photographs and visual and audio images of the premises, including digital images, drawings, renderings, and video recordings (collectively, "Images"). The Client further irrevocably grants Brightside permission to use, reproduce, distribute, exploit, and display all Images in any manner or media, including composite and modified representations, in any form now known or later developed, throughout the world, and in perpetuity, except with respect to any images to which the Client objects on the grounds that the images may reveal trade or business secrets or proprietary design or arrangement of the Client. The Client may request the right to inspect or approve the Images or any materials that use or incorporate the Images. Brightside is permitted, but not obligated, to include the Client’s name in connection with the Images. The Client agrees and acknowledges that Brightside owns the Images, including all rights, title, and interest therein, and all commercial, advertising, or promotional materials that incorporate or use the Images. The Client also agrees and acknowledges that the Images are and will remain the property of Brightside. The Client fully releases Brightside, and its officers, directors, agents, employees, representatives, divisions, subsidiaries, affiliates, successors, and assigns, from any and all claims, liabilities, causes of action, and/or damages of any kind in connection with the taking and/or use of the Images.