Brightly terms
of trade

2.1           Definitions: In this Agreement, unless the context requires otherwise, the following terms have the following meaning:

Business Days: a day that is not a Saturday or Sunday, a public holiday in Auckland, or a day between 25 December to 3 January (inclusive).

Client: the client named in the Statement of Work, Service Schedule or who issues a Work Request or who otherwise receives goods, services or deliverables from Brightly.

Confidential Information: the terms and conditions of this Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, this Agreement. Brightly’s Confidential Information includes Intellectual Property owned by Brightly.

Deliverables: the deliverables set out in the relevant Statement of Work, Service Schedule or Work Request.

Fees: the fees set out in the relevant Statement of Work, Service Schedule or Work Request, or if there are none, the fees calculated as set out in clause 10.2.

Force Majeure: an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.

Goods: the goods ordered by the Client, as further described in the relevant Statement of Work, Service Schedule or Work Request.

Intellectual Property Rights: includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning.

Requirements: the specifications and requirements for the Goods, Services or Deliverables set out in the relevant Statement of Work, Service Schedule or Work Request.

Service Schedule: a document entitled Service Schedule which is signed by the parties and which describes the services to be provided by Brightly to the Client, including any document attached to or referred to in that Service Schedule. A Support Plan Proposal once signed by the parties becomes part of a Service Schedule. If a Support Plan Proposal has been signed, but a separate Service Schedule has not, the Support Plan Proposal shall be considered a Service Schedule for the purposes of this Agreement.

Services: the services set out in the relevant Statement of Work, Service Schedule or Work Request.

Software Subscription: a recurring service agreement under which the Client receives access to specified software applications or services for a defined period, subject to payment terms and conditions as outlined in a Software Subscription agreement, which may be attached to, and form part of, a Statement of Work or Service Schedule or Work Request, or if not attached to such a document will be deemed to be a Statement of Work for the purposes of this Agreement once agreed by the Client.

Standard Business Hours: 8:00am to 6:00pm on Business Days.

Statement of Work: a document entitled Statement of Work which is signed by the parties and which describes the provision of goods, services and/or deliverables by Brightly to the Client, including any document attached to, referred to in or developed under that Statement of Work.

Work Request: any request (including email and verbal requests) from the Client for Brightly to provide goods, deliverables and/or perform services which are not included in a Statement of Work or Service Schedule, which has been accepted by Brightly either in writing or by commencing the provision of the relevant goods, deliverables and/or services.

2.2           Interpretation: In the Agreement:

(a)      clause and other headings are for ease of reference only and do not affect the interpretation of this Agreement;

(b)      words importing the singular include the plural and vice versa; and

(c)      a reference to:

(i)        a party to this Agreement includes that party’s permitted assigns; and

(ii)        including and similar words do not imply any limit.

2.3           Order of precedence: Where any conflict exists between the documents comprising this Agreement, those documents have the following order of precedence:

(a)      the Statement of Work or Service Schedule (excluding its attachments);

(b)      these Terms;

(c)      Work Requests; and

(d)      any document attached to, referred to in, or developed under, a Statement of Work, Service Schedule or Work Request.

3.1           Supply: Brightly agrees to supply, and the Client agrees to pay for, the Goods, Services and Deliverables on the terms of this Agreement.

3.2           Delay: While Brightly will use reasonable efforts to supply the Goods, Services and Deliverables on or before the date (if any) set out in a Statement of Work, Service Schedule or Work Request:

(a)      Brightly will not be liable for any loss, liability or damage resulting from any delay; and

(b)      the Client will not be relieved of any obligation to accept or pay for the Goods, Services or Deliverables by reason of any delay.

4.1           Delivery: Brightly will deliver the Goods to the Client in accordance with the method of delivery set out in the Statement of Work, Services Schedule or Work Request (Delivery).

4.2           Title: Title to Goods passes to the Client on the later of:

(a)      Delivery; and

(b)      receipt by Brightly of payment in full for the Goods.

4.3           Risk: Risk in the Goods passes to the Client on Delivery.

4.4           Failure to collect: Where the Client fails to accept delivery or collect, or arrange collection of, the Goods (as applicable) within 7 days of Delivery, the Client must, in addition to any other remedies Brightly may have under the Agreement or at law, indemnify Brightly against all loss, damage, liability, and costs (including costs of storage), suffered or incurred (or reasonably charged) by Brightly as a direct or indirect result of that failure.

5.1           Provision of Services: Brightly will provide the Services and Deliverables:

(a)      in accordance with this Agreement, including the Requirements, and all applicable laws;

(b)      using reasonable care, skill and diligence;

(c)      using reasonable efforts to meet any timetables and estimates set out in a Statement of Work, Service Schedule or Work Request, however, the Client acknowledges that any such timetable or estimate is indicative only; and

(d)      using suitably skilled, experienced and qualified staff.

5.2           Client: The Client must:

(a)      perform the functions, tasks and responsibilities, and provide the personnel, materials or other resources set out in the Statement of Work, Service Schedule or Work Request in a timely manner; and

(b)      promptly make decisions (including approvals) and provide Brightly with all information reasonably required to provide the Services, and Deliverables and/or Goods.

6.1           Goods:

(a)      Brightly warrants that at the time that title passes to the Client:

(i)        it has the right to sell the Goods; and

(ii)        the Goods are sold free from any third party charge or encumbrance.

(b)      Except as set out in clause 6.1(a), Brightly does not provide any warranties in relation to the Goods. Brightly will use reasonable endeavours to pass on to the Client the benefit of any warranties provided by the third party suppliers or manufacturers of the Goods.

(c)      The warranty set out in clause 6.1(a) is the Client’s sole remedy against Brightly in relation to any defect in the relevant Goods.

6.2           Services and Deliverables:

(a)      Brightly warrants that the Services and Deliverables will, at the time they are provided, materially conform to the Requirements.

(b)      If the Services or Deliverables do not meet the warranty set out in clause 6.2(a), at the Client’s request and at Brightly’s cost, Brightly will reperform the Services or remedy or replace the Deliverables so that they meet or satisfy the warranty. Brightly’s obligation under this clause 6.2(b) is the Client’s sole remedy against Brightly for breach of warranty in relation to the Services and Deliverables.

6.3           Exclusions:

(a)      To the maximum extent permitted by law, Brightly’s warranties are limited to those stated in clauses 6.1(a) and 6.2(a). Any implied condition or warranty, whether under statute or in contract is excluded.

(b)      The Client agrees and represents that it is acquiring the Goods, Services and Deliverables for the purposes of a business or otherwise in trade. The parties agree that:

(i)        to the maximum extent permissible by law, the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of the Goods, Services and Deliverables or the Agreement; and

(ii)        the parties agree to contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 and it is fair and reasonable that the parties are bound by this Agreement, including this clause 6.3.

7.1           PPSA: The parties agree that the supply of any Goods under this Agreement creates a security interest in favour of Brightly over those Goods and the proceeds of such Goods, to secure payment by the Client to Brightly of the amount owing for those Goods.

7.2           Further acts: The Client must provide all information and do all things including the execution of documents as Brightly may require for the purpose of ensuring that Brightly has a perfected first ranking security interest in the Goods and any proceeds under the Personal Property Securities Act 1999 (PPSR). The Client waives its right to receive a verification statement in respect of any financing statement relating to the security interest created under this clause 7. To the extent permitted by law, the parties contract out of sections 109, 111(1), 112, 114(1)(a), 116, 120(1), 122, 123, 133, and 134 of the PPSA.

7.3           Repossession: If the Client is in breach of the Agreement (including failing to pay any payment when due), Brightly may, in addition to any other remedies it may have under this Agreement or at law, enter into any premises of the Client at any reasonable time to repossess any Goods over which Brightly has a security interest.

8.1           Pre-Existing Intellectual Property: Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) which is the property of a party prior to the start of this Agreement or which is developed independently of this Agreement remains the property of that party (Pre-Existing IP). To the extent any Pre-Existing IP of a party is incorporated into any Goods, Services or Deliverables, or otherwise made available to a party in connection with the supply or receipt of the Goods, Services or Deliverables, it is made available pursuant to a royalty-free, non-exclusive licence to use that Pre-Existing IP solely for the purpose of providing or receiving or using the Goods, Services or Deliverables in accordance with the terms of this Agreement.

8.2           New Intellectual Property: Subject to clause 8.1, unless the terms of the Statement of Work, Service Schedule or Work Request specifically identify that Brightly will create new Intellectual Property expressly for the Client and such new Intellectual Property will be owned by the Client, any new Intellectual Property created or developed by Brightly in the course of providing the Services and Deliverables, will be owned by Brightly and to the extent required, licensed to the Client in accordance with clause 8.1. Where the Client owns such new Intellectual Property in accordance with this clause 8.2, ownership will pass to the Client upon payment in full of all of the Fees relating to those Services or Deliverables.

9.1           Audit: Brightly must allow the Client (or an auditor nominated by the Client) to conduct audits, from time to time, of Brightly’s performance of the Services, and of Brightly’s compliance with the Agreement. The costs of those audits will be borne by the Client.

9.2           Conditions: In conducting an audit, the Client must:

(a)      provide reasonable notice of the audit and only conduct it during Business Hours on Business Days; and

(b)      comply with Brightly’s reasonable security requirements; and

(c)      not conduct more than one audit in any 12 month period.

10.1           Fees: The Client must pay the Fees to Brightly for providing the Goods, Services and/or Deliverables.

10.2           Hourly Rates: Unless otherwise agreed in a Statement of Work, Service Schedule or Work Request, the Fees for the performance of the Services will be calculated on a time and materials basis at Brightly’s standard hourly rates at the time it carries out the Services. Brightly’s standard hourly rates are published on its website or otherwise made available to the Client on request. Brightly’s hourly rates are reviewed and updated from time to time, and may increase annually by an amount between the annual CPI or higher where there are unavoidable supplier cost increases. Brightly will notify the Client of any changes to its rates.

10.3           Invoicing:

(a)      Brightly must provide the Client with a valid GST tax invoice on the dates set out in the Statement of Work, Service Schedule or Work Request, or if there are no such dates specified, monthly for Services undertaken and Goods and Deliverables delivered in the previous month.

(b)      The Fees exclude GST, which the Client must pay in addition to the Fees on all taxable supplies provided under the Agreement.

(c)      The Client must pay Brightly’s invoice:

(i)        on the dates set out in the Statement of Work, Service Schedule or Work Request, or if there are no such dates, by the 20th of the month following the date of invoice; and

(ii)        electronically in cleared funds without any set off or deduction to the bank account specified in the invoice or otherwise notified by Brightly to the Client from time to time.

10.4           Invoice disputes: The Client may, on reasonable grounds, query or dispute an invoice. Brightly will provide the Client with information it reasonably requests in respect of that invoice and the parties will each use their best efforts in good faith to resolve the query or dispute. The Client may, acting in good faith, withhold the relevant disputed portion of the amount payable under that invoice until the query or dispute is resolved. The Client must notify Brightly of the dispute within 14 days of receipt of the invoice. The Client must pay any undisputed portion of the disputed invoice by the due date set out in clause 10.3(c)(i).

10.5           Currency: Unless stated otherwise, all monetary amounts are stated in New Zealand dollars, and all amounts payable under the Agreement are to be paid in New Zealand dollars.

10.6           Overdue amounts: Without limiting any other right or remedy available to Brightly, where any undisputed amount payable by the Client is overdue and, such amount remains overdue following the expiry of 5 Business Days from the date of written notice from Brightly notifying the Client of such overdue payment:

(a)      Brightly may restrict or suspend the provision of the Goods, Services and Deliverables until such overdue amount is paid;

(b)      Brightly may charge interest on the overdue amount. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Brightly’s primary trading bank as at the due date (or if Brightly’s primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum; and

(c)      the Client must indemnify Brightly against any costs or damages (including legal costs on a solicitor-client basis) incurred in recovering the overdue amount, and such amounts will be monies due for the purposes of the Agreement.

11.1           Security: Each party agrees that, unless it has the prior written consent of the other party, it will:

(a)      keep confidential at all times the Confidential Information of the other party; and

(b)      ensure that any personnel or professional advisor to whom a party discloses the other party’s Confidential Information is aware of, and complies with, the provisions of this clause 11.1.

11.2           Disclosure required: The obligations of confidentiality in clause 11.1 do not apply to any disclosure:

(a)      for the purpose of performing this Agreement or exercising a party’s rights under this Agreement;

(b)      required by law (including under the rules of any stock exchange);

(c)      of Confidential Information where the Confidential Information:

(i)        is publicly available through no fault of the recipient of the Confidential Information or its personnel; or

(ii)        was rightfully received from a third party without restriction or without breach of this Agreement; or

(d)      by Brightly if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Brightly enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 11.

11.3           Return of information: Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the expiry or termination of this Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.

12.1           Maximum liability: The maximum aggregate liability of either party to the other party, whether in contract, tort (including negligence), breach of statutory duty or otherwise:

(a)      under or in connection with any Statement of Work, Service Schedule or Work Request, must not exceed the Fees paid by the Client under that Statement of Work, Service Schedule or Work Request in the 12 month period preceding the date on which liability first arose; and

(b)      under or in connection with this Agreement must not exceed the Fees paid by the Client under this Agreement in the 12 month period preceding the date on which the liability first arose.

12.2           Unrecoverable loss: Neither party is liable to the other under or in connection with this Agreement for any loss of profit, data, savings, business, revenue, and/or goodwill, or any indirect, consequential, incidental or special loss or damage of any kind.

12.3           Unlimited liability: Clauses 12.1 and 12.2 do not apply to limit:

(a)      the Client’s liability:

(i)        to pay the Fees; or

(ii)        under the indemnities in clauses 4.4 and 10.6(c); or

(b)      either party’s liability for:

(i)        personal injury or death;

(ii)        fraud, deliberate and wilful misconduct or gross negligence (where gross negligence means any act or omission which seriously and substantially deviates from a diligent course of action or which is in reckless disregard of a known risk or a risk so obvious that it should have been known); or

(iii)        breach of clause 11.

12.4           No liability for the other’s failure: Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.

12.5           Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement.

12.6           Insurance: At its own expense, Brightly must maintain in effect at all times during the term of this Agreement with a reputable third party insurance company:

(a)      product and public liability insurance in an amount not less than $1,000,000;

(b)      professional indemnity insurance in an amount not less than $1,000,000; and

(c)      such other insurance policies that a prudent entity supplying the Goods, Services and Deliverables would maintain, taking into account Brightly’s risks and potential liabilities under this Agreement.

13.1           Start dates: Each Statement of Work and Service Schedule starts on the start date set out in the Statement of Work or Service Schedule. Each Work Request starts on the start date set out in the Work Request or, if none is stated, when Brightly commences the provision of the relevant Goods, Services and/or Deliverables.

13.2           Termination of Agreement:

(a)      Either party may terminate this Agreement on 30 days’ prior written notice to the other party if, at the time the notice is given, there are no Statements of Work, Service Schedules or Work Requests in effect.

(b)      Either party may, by notice to the other party, immediately terminate:

(i)        this Agreement and the relevant Statement of Work, Services Schedule and/or Work Request if the other party breaches any material provision of this Agreement, the Statement of Work, Services Schedule and/or Work Request and the breach is not:

(A)              remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or

(B)              capable of being remedied;

(ii)        this Agreement and all Statements of Work, Services Schedules and Work Requests if the other party has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason; or

(iii)        this Agreement and the relevant Statement of Work, Services Schedule and/or Work Request if the other party is unable to perform a material obligation under this Agreement, the Statement of Work, Services Schedule and/or Work Request for 30 days or more due to Force Majeure,

and where one or more Statement of Work, Services Schedule and/or Work Request is terminated in accordance with clause 13.2(b)(i) or 13.2(b)(iii), any unaffected Statements of Work, Services Schedule and/or Work Requests will continue for the term of the applicable document and the terms of this Agreement will continue to the extent required to enable the continuation of any continuing Statement of Work, Services Schedule or Work Request in accordance with their terms.

13.3           Termination of Statements of Work, Service Schedules and Work Requests:

(a)      Without limiting the provisions of clauses 13.2(b)(i) and (iii), each Statement of Work, Service Schedule and Work Request will terminate:

(i)        on the end date (if any) specified in the Statement of Work, Service Schedule or Work Request; or

(ii)        in accordance with any additional rights to terminate set out in the Statement of Work, Service Schedule or Work Request.

(b)      Where a party has a right to terminate this Agreement under clause 13.2(b) it may, at its discretion and to the extent practicable, instead of terminating the Agreement in full, terminate only an affected Statement of Work, Service Schedule or Work Request.

13.4           Consequences of expiry or termination:

(a)      The Client must pay for Goods, Services and Deliverables provided or Delivered before the expiry or termination date of this Agreement, Statement of Work, Services Schedule and/or Work Request, as applicable.

(b)      Expiry or termination of this Agreement or a Statement of Work, Service Schedule or Work Request does not affect each party’s rights and obligations accrued before the termination or expiry date.

13.5           Obligations continuing: Clauses which, by their nature are intended to survive expiry or termination, including clauses 4.4, 7, 10.6(c), 11, 12, 13.4, 13.5 and 16, continue in force, notwithstanding any such expiry or termination.

13.6           Termination of Software Subscriptions:

(a)      The term of this Agreement is independent of any Software Subscription agreement term applicable to any individual Software Subscription, which will in each case be set forth in the Software Subscription agreement.

(b)      Notwithstanding any earlier termination or expiry of this Agreement, a Statement of Work, Services Schedule or Work Request, the terms of this Agreement (and any applicable Statement of Work, Services Schedule or Work Request to the extent necessary) shall continue in full force and effect to the extent necessary for the continuation of any Software Subscriptions which continue beyond the applicable termination or expiry, until such Software Subscriptions expire or are terminated.

14.1           Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, this Agreement through good faith negotiations.

14.2           Obligations continue: Each party must, to the extent possible, continue to perform its obligations under this Agreement even if there is a dispute.

14.3           Right to seek relief: This clause 14 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

15.1           Force Majeure: Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure, provided that the affected party:

(a)      immediately notifies the other party and provides full information about the Force Majeure;

(b)      uses best endeavours to overcome the Force Majeure; and

(c)      continues to perform its obligations under this Agreement as far as practicable.

15.2           Waiver: To waive a right under this Agreement, that waiver must be in writing and signed by the waiving party.

15.3           Independent contractor: Brightly is an independent contractor of the Client. No other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.

15.4           Notices: A notice given by a party under this Agreement must be delivered via email to an email address notified by the other party for this purpose. If the notice is given under clause 13, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.

15.5           Severability: Any illegality, unenforceability or invalidity of a provision of this Agreement does not affect the legality, enforceability or validity of the remaining provisions of this Agreement.

15.6           Variation: Except as expressly stated otherwise in this Agreement, any variation to this Agreement must be in writing and signed by both parties.

15.7           Entire Agreement: This Agreement sets out everything agreed by the parties relating to the Goods, Services and Deliverables and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement.

15.8           Assignment: The Client may not assign or transfer any right or obligation under this Agreement without Brightly’s prior written approval (not to be unreasonably withheld).

15.9           Law: This Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with this Agreement.

15.10           Counterparts: This Agreement (including the Statements of Work, Service Schedules and Work Requests) may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter into this Agreement (including the Statements of Work, Service Schedules and Work Requests) by signing and sending (including by email) a counterpart copy to the other party.

16.1           Non-solicitation of Personnel: The Client must not, without Brightly’s prior written consent, during the term of this Agreement and for twelve (12) months after the last date on which the Client receives Services under any Statement of Work, Service Schedule or Work Request, directly or indirectly:

(a)      solicit, induce, or attempt to solicit or induce any employee, contractor, consultant, or other personnel of Brightly with whom the Client had contact or dealings during the provision of Services (“Personnel”) to leave Brightly’s employment or engagement; or

(b)      employ, engage, or otherwise contract with any such Personnel in any capacity.

16.2           Recruitment Fee: If the Client breaches clause 16.1 by employing or engaging any Personnel, the Client must pay Brightly, on demand, a recruitment fee equal to 25% of the individual’s current annual salary or contracting fees (calculated on an annualised basis) plus GST for each affected individual. The parties agree this amount is a genuine pre-estimate of Brightly’s loss arising from the recruitment costs, loss of trained personnel, and disruption to service delivery, and not a penalty.

16.3           Reasonableness and Legitimate Business Interest: The Client acknowledges that the restrictions in this clause are reasonable and necessary to protect Brightly’s legitimate business interests, including:

(a)      protecting Brightly’s investment in recruiting, training, and developing its Personnel;

(b)      protecting Brightly’s confidential information and business methodologies known to Personnel;

(c)      protecting Brightly’s client relationships and service continuity; and

(d)      preventing unfair competition through the poaching of key personnel with whom the Client has developed relationships during the provision of Services.

16.4           Scope Limitation: This clause only applies to Personnel with whom the Client had material contact or dealings during the provision of Services, and does not prevent the Client from employing Personnel who respond to general advertisements or recruitment processes not specifically targeted at Brightly’s Personnel.