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Terms of Sale

Revision date: November 10, 2024

These terms of sale (the "Terms of Sale") govern all transactions between Brightside Supply, LLC, and/or any of its affiliates/subsidiaries ("Brightside") and its Customers (as defined below) for the sale of goods and/or services. If there is an executed agreement between the parties governing services or goods contemplated by the applicable order, then the executed agreement shall govern. Any competing or conflicting terms from Customer of any kind, such as those located in a quotation, purchase order, request for proposal, request for quotation, or other document are rejected and shall be of no force or effect.

  1. Defined Terms. (a) “Goods” shall mean all tangible or intangible goods, including products, equipment, disposables, and any other goods described in an Order. (b) “Services” means any services described in an Order. (c) An “Order” shall mean a quote, purchase order, statement of work, any bidding documents, or other transmission from Customer requesting pricing, proposals, Goods, or Services from Brightside. (d) “Customer” is the person or entity purchasing Goods and/or Services from Brightside.
  2. Acceptance. Customer accepts these Terms of Sale through submission of an Order, award of a bid, acceptance of the Goods or Services requested, and/or the payment of an invoice. Customer agrees that no other writing shall be required to make an Order legally binding, and Customer agrees not to contest the validity or enforceability of an Order under the provisions of a statute of frauds or any other applicable law. If the Order is submitted as part of a bid proposal or other bid response, Brightside reserves the right to review and negotiate all related contract/project documents upon award. Brightside shall not be bound by any terms and conditions contained in any bid document, project document, or contract document until executed by an authorized agent of Brightside. Brightside reserves the right to withdraw its bid without penalty if an agreement on the terms and conditions governing Brightside’s work cannot be reached.
  3. Credit. Brightside may but shall not be obligated to grant credit terms to any Customer. Acceptance of any Order is subject to final credit approval by Brightside. Brightside reserves the right to cancel any sale due to credit concerns.
  4. Terms of Payment. Unless otherwise specified on the face of an Order and agreed to in writing by Brightside, upon acceptance of the Order by Brightside, Customer shall make a cash down payment equal to fifty percent (50%) of the total amount of Goods or Services (including any shipping, storage, or other costs) to be provided under the Order, and the remaining balance due shall be paid prior to the shipment, delivery, or pick-up of said Goods and/or provision of Services. Any other amount due shall be paid within thirty (30) days of the date of invoice. Brightside reserves the right to invoice Customer for any Goods received by Brightside but not ready for immediate shipment, delivery, or pickup by Customer; upon issuance of this invoice, all risk of loss of subject Goods shall pass to Customer and Customer shall be responsible for any storage fees or other costs incurred or charged by Brightside. A finance charge equal to the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law shall be assessed on any balance not paid when due, and Brightside shall be entitled to withhold or cease further shipment of Goods or delivery of Services to Customer. All documentation required for invoicing shall be indicated on the face of the Order. Brightside may impose a convenience fee for credit card payments no greater than Brightside’s cost of acceptance, except to the extent prohibited by applicable law.
  5. Prompt-Pay / Early-Pay. Notwithstanding anything to the contrary, in no event shall Brightside be deemed to have waived its rights under any applicable state and/or federal prompt-pay laws. In no event shall prompt-pay, early-pay, or other similar discounts of any sort be applied to payments due and owing to Brightside for its completed and accepted work, absent the express written consent of a corporate officer of Brightside.
  6. Shipment and Delivery. If Customer is utilizing a carrier of its choosing to deliver Goods, Brightside’s responsibility for the Goods ceases upon the delivery of the Goods in good condition to the carrier. If Brightside selects its own carriers to deliver Goods, Brightside’s responsibility for the Goods ends upon delivery to Customer’s ship-to location. If Brightside is obligated to facilitate or arrange storage for Goods, Customer accepts all risk of loss upon delivery of the Goods to the warehouse or other storage location.
  7. Inspection. Customer shall inspect Goods or Services at the time of delivery and, where feasible, note on the shipping documentation any missing, visibly damaged, or non-conforming Goods. Customer shall notify Brightside in writing of any missing, damaged, or non-conforming Goods within five (5) days of delivery. For the avoidance of doubt, such examination shall not have any impact on the rights of Customer under manufacturer warranties for damage or defects which cannot be determined from visual inspection at the time of delivery.
  8. Corrections. Brightside reserves the right to make any corrections or adjustments in prices, fees, taxes, or other charges or quantities quoted due to errors, market fluctuation, supply chain disruptions or tariffs, third-party supplier changes in cost, or other factors outside of Brightside’s reasonable control. Brightside will notify Customer promptly of such corrections or adjustments. Brightside reserves the right to cancel or refuse any Order based on incorrect pricing or availability.
  9. Delays. (a) Brightside shall have no liability for delays or failure to perform relating to matters outside of its reasonable control, including but not limited to Customer’s failure to fulfill its obligations under these Terms of Sale. (b) While Brightside will use commercially reasonable efforts to accommodate changes to the delivery schedule, Brightside shall have in its sole discretion the authority to take any of the following actions or a combination thereof: i. Receive payment in full for all issued invoices and for all remaining amounts due under the Order; ii. Should it be required to incur expense for stored materials and equipment due to schedule changes outside of its reasonable control, Brightside shall be entitled to reasonable payment for storage costs; and/or iii. Cancel the Order when possible. In the event that custom items cannot be canceled, additional costs may apply.
  10. Cost of Delivery, Taxes, and Other Charges. Customer shall reimburse Brightside for the costs of delivery and handling (said costs do not reflect any rebate or other compensation received by Brightside from a carrier or transportation broker) and all sales, use, excise, or similar taxes, tariffs, or other charges Brightside is required to pay on Customer’s behalf. Customer is responsible for all delivery, sales/use/excise taxes, tariffs, and other charges imposed by any governmental entity on the sale.
  11. Pick-Up of Goods by Customer. If any Goods are to be picked up by Customer, pick-up must occur within thirty (30) days from the date Customer is informed they are available for pick-up. Goods not picked up by Customer within thirty (30) days will accrue storage fees at the rate of one hundred dollars ($100.00) per day. All products not picked up within ninety (90) days shall revert to Brightside for disposition. Customer waives any right to proceeds from the disposition of such products and shall remain liable for any outstanding balance owed to Brightside.
  12. Return of Products. All returns must be made within thirty (30) days of delivery of the Goods or Services. The Goods must be in new condition with all original packaging intact and are subject to the acceptance of Brightside and/or its suppliers. Fabricated or custom-manufactured Goods may not be returned or canceled, and Customer shall be responsible for all costs or fees related to the fabrication or manufacture of products upon commencement of the same, which shall be due and payable in accordance with the terms outlined in the Order accepted by Brightside. Customer agrees to pay the costs of return packaging, shipping, and handling, as well as any restocking fees charged by Brightside or its suppliers.
  13. Product Compliance & Suitability. While Brightside strives to ensure that the Goods it sells comply with all applicable laws, Brightside is not a manufacturer and does not warrant or guarantee such compliance. Additionally, Brightside cannot be held responsible for how a product is used. All product pictures or drawings are for illustrative purposes only and may not be relied upon for specific measurements or configurations.
  14. Services. Brightside will perform the Services in accordance with the Order. Brightside is not obligated to perform any services other than those expressly set forth in an Order that has been accepted by Brightside. Customer must provide Brightside accurate information and fully disclose all conditions that may impact the Services in order for Brightside to properly render the Services. Brightside does not provide any architectural, mechanical, electrical, HVAC, or structural engineering services and expressly disclaims any responsibility and liability thereof. If Brightside is required to incur premium or overtime labor expenses due to schedule changes made by Customer, Brightside shall be compensated for such additional expenses.
  15. No Warranties to Consumers. Customer represents and warrants that Goods and Services are intended solely for professional and/or commercial use, and as such, Brightside makes no warranties to those defined as consumers in the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act.
  16. Manufacturer Warranties. Brightside will assign and/or otherwise make available to Customer all rights, if any, under applicable manufacturer warranties and will obtain copies of manufacturer warranties and furnish them to Customer upon request.
  17. Limited Warranty. Brightside warrants that all Goods will be new, unless otherwise specified, and that Brightside’s Services, if any, will be performed in a workmanlike manner. EXCEPT AS SET FORTH IN THIS SECTION, BRIGHTSIDE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED, OF ANY KIND WITH RESPECT TO ANY GOODS OR SERVICES SOLD BY IT, WHETHER AS TO PERFORMANCE, QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. The only warranties applying to Goods sold hereunder are those (if any) specifically provided in writing by the manufacturer. Customer shall contact the manufacturer directly for any warranty claims, and Brightside shall have no liability for any manufacturer warranty claims.
  18. Limitation of Liability. IN NO EVENT SHALL BRIGHTSIDE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE, DAMAGE TO GOODWILL OR REPUTATION, LOSS OF DATA, OR REPROCUREMENT COSTS ARISING OUT OF OR AS A RESULT OF THE SALE, USE, OR LOSS OF GOODS SOLD OR SERVICES DELIVERED, REGARDLESS OF THE THEORY OR BASIS FOR SUCH LIABILITY, EVEN IF FORESEEABLE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This section shall survive indefinitely. Brightside’s entire liability for all claims, losses, damages, and expenses resulting from these Terms of Sale or Goods or Services shall not exceed the total amount paid by Customer to Brightside for the applicable Goods or Services.
  19. Indemnity. Customer understands that Brightside is not an insurer and that Customer is responsible for obtaining insurance coverage(s) appropriate for its business operations. Customer shall defend, indemnify, and hold harmless Brightside and its respective officers, directors, employees, subcontractors, and agents (each individually, an “Indemnified Party”) from and against any and all claims, suits, liabilities, damages, settlements, charges, taxes, and any other losses or expenses (including reasonable attorneys’ fees) for physical injury to or illness or death of any third party and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such liabilities relate to Goods or Services, except for such liabilities arising out of a final judgment of gross negligence or willful misconduct of the Indemnified Party.
  20. Assignment. Customer may not assign an Order or any of the rights and/or obligations thereunder without Brightside’s written consent. Brightside may assign an Order or any agreement to any of its affiliates or subsidiaries without Customer’s consent.
  21. Security Interest. Until payment in full is received by Brightside, Customer grants to Brightside a priority lien and security interest in those Goods sold to Customer and all of Customer’s rights to payment therefor, including all insurance proceeds receivable thereon. Customer irrevocably authorizes Brightside to perfect the granted security interest and to file U.C.C.-1 financing statements and/or other appropriate documentation to assure and perfect the validity, priority, and enforceability of and to exercise and enforce such security interest(s).
  22. Termination. Brightside shall have the right to terminate any Order or agreement for any or no reason upon the provision of fifteen (15) days written notice to Customer. Customer shall be liable to Brightside for Goods and Services rendered up until the effective date of termination, as well as payment for any custom items that cannot be canceled and any manufacturer restocking fees and shipping/handling fees incurred by Brightside for returned or canceled materials and equipment.
  23. Confidentiality. With respect to the confidentiality of certain non-public, confidential, or proprietary information to be shared between the parties in order to execute the Order (the “Permitted Purpose”) and in consideration of the parties furnishing Confidential Information to each other, the parties agree as follows: (a) Each party (a “Disclosing Party”) may from time to time disclose certain Confidential Information to another party (a “Receiving Party”). The term “Confidential Information” shall mean, without limitation, any and all inventions, know-how, data, business information, plans, or trade secrets communicated in writing, orally, or by other means. (b) The Receiving Party shall keep Confidential Information confidential and shall not, without the prior written consent of the Disclosing Party, use or disclose Confidential Information for any purpose other than the Permitted Purpose.
  24. Force Majeure. Brightside shall not be liable for any damages resulting from delays or otherwise occasioned by (i) the actions or inactions of Customer, (ii) plague, epidemic, pandemic, or other public health crisis, (iii) labor strikes provided Brightside is not the cause thereof, (iv) shortages in supplies or raw materials or other supply chain disruptions, or (v) fires, weather, flood, wind, lightning, storm, earthquake, acts of war, or acts of God.
  25. Governing Law. All Orders, these Terms of Sale, and the provisions contained herein and therein shall be construed, governed, and enforced in accordance with the internal laws of the State of Delaware, without regard to its conflicts of law provisions.
  26. General. Except as set forth in Section 8 above, any modification, amendment, or waiver of these Terms of Sale must be in writing and signed by an authorized representative of both Customer and Brightside. Customer acknowledges and agrees that from time to time Brightside may remit allowances, rebates, or other compensation to third parties with whom Customer is affiliated, and Brightside shall have no liability or responsibility towards Customer in connection with said allowances, rebates, or other forms of compensation paid to Customer-affiliated third parties. If either Customer or Brightside fails to enforce any right or remedy available to it, such failure will not be a waiver of any other right or remedy. Brightside reserves the right to update or modify these Terms of Sale in its sole discretion and at any time. The updated or modified Terms of Sale shall be applicable to all Orders placed after such update or modification. If any provision of an Order or these Terms of Sale is found to be illegal, invalid, or unenforceable in a jurisdiction, such provision (or portion thereof) will be ineffective only to the extent of its illegality, invalidity, or unenforceability and only in such jurisdiction, and such finding will not affect any other provision of an Order or these Terms of Sale, with a valid provision that most closely approximates the economic effect and intent of the illegal, invalid, or unenforceable provision substituted therefor.