Brightly terms
of trade

1.APPLICATION

1.1 Application: These Terms apply to all Goods, Services and Deliverables supplied by Brightly to the Client, unless there is a separate written agreement signed by both parties which excludes these Terms.

1.2 Agreement: Subject to clause 1.1, a binding agreement on the terms of the Agreement is formed on:

a) the parties signing a Statement of Work or Service Schedule; or

b) the Client requesting Brightly to perform services or provide goods (including email and verbal requests) and Brightly accepting that request either in writing or by commencing the provision of the relevant services, delivering the relevant goods or making the relevant goods available for collection.

1.3 Exclusion of Client terms:

The Agreement applies to the exclusion of any standard or other terms the Client may have for the purchase of goods or services, including any terms the Client may have included its Work or Goods Request or any purchase order issued by the Client.

2. INTERPRETATION

2.1 Definitions: In the Agreement, the following terms have the stated meaning:

Agreement: these Terms and the Statements of Work, Service Schedules and Work or Goods Requests.

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

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

Client: the client named in the Statement of Work, Service Schedule or who issues (or on whose behalf is issued) a Work or Goods Request.

Confidential Information: the terms and conditions of the 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, the Agreement. Intellectual Property owned by Brightly is Brightly’s Confidential Information.

Deliverables: the deliverables set out in the relevant Statement of Work or Work or Goods Request.

Fees: the fees set out in the relevant Statement of Work, Service Schedule or Work or Goods Request, or if there are none, the fees calculated as set out in clause 11.2.

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 described in the relevant Statement of Work, Service Schedule or Work or Goods Request.

Intellectual Property Rights: includes copyright and all rights 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.

Brightly: Brightly Solutions Limited, company number 6169027.

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

Service Schedule: a document entitled Service Schedule that is stated to be subject to these Terms and signed by the parties, for the provision of services by Brightly to the Client, including any document attached to or referred to in that Service Schedule.

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

Statement of Work: a document entitled Statement of Work that is stated to be subject to these Terms and signed by the parties, for the provision of goods, services and/or deliverables by Brightly to the Client, including any document Confidential Brightly Terms of Trade 2 of 8 attached to, referred to in or developed under that Statement of Work.

Terms: these terms titled Brightly Terms of Trade.

Work or Goods Request: any request (including email and verbal requests) from the Client for Brightly to provide goods 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 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 the Agreement;

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

c) a reference to:

i a party to the 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 the Agreement, those documents have the following descending order of precedence:

a) the main body of the relevant Statement of Work or Service Schedule;

b) these Terms;

c) Work or Goods Requests; and

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

3. SUPPLY OF GOODS

3.1 Delivery: Brightly will deliver the Goods or make the Goods available for collection in accordance with the method of delivery set out in the Statement of Work, Service Schedule or Work or Goods Request or otherwise agreed with the Client.

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

a) delivery or collection; and

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

3.3 Risk: Risk in the Goods passes to the Client on delivery or collection.

3.4 Failure to accept delivery or collect: Where the Client fails to accept delivery or collect (or arrange collection of) the Goods (as applicable) within 7 days of the date Brightly attempts to deliver the Goods or makes the Goods available for collection, 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.

4. SERVICES

In addition to its other obligations under the Agreement, Brightly must provide the Services:

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

b) exercising 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 or Goods Request, however, the Client acknowledges that any such timetable or estimate is indicative only; and

d) using suitably skilled, experienced and qualified staff. Confidential Brightly Terms of Trade 3 of 8

5. TIMETABLE

If Brightly becomes aware that any timetable or estimate in a Statement of Work, Service Schedule or Work or Goods Request will not be met, or is likely to not be met, Brightly will inform the Client as soon as reasonably practicable. While Brightly will use reasonable efforts to supply the Goods and Services on or before the date (if any) set out in a Statement of Work, Service Schedule or Work or Goods 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.

6. CLIENT OBLIGATIONS

In addition to its other obligations under the Agreement, 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 or Goods Request in a timely manner; and

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

7. WARRANTIES

7.1 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 7.1a, 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. This is the Client’s sole remedy against Brightly in relation to any defect in the relevant Goods.

7.2 Services:

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 a warranty, at the Client’s request and at Brightly’s cost, Brightly must reperform the Services or remedy or replace the Deliverables so that they meet or satisfy that warranty. Brightly’s obligation under this clause 7.1 is the Client’s sole remedy against Brightly for breach of warranty.

7.3 Exclusions:

a To the maximum extent permitted by law, Brightly’s warranties are limited to those stated in clause 7.1a and 6.2a. Any implied condition or warranty (including any warranty under Part 3 of the New Zealand Contract and Commercial Law Act 2017) is excluded.

b The Client agrees and represents that it is acquiring the Goods, Services and Deliverables for the purposes of 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 or Deliverables or the Agreement; and

ii it is fair and reasonable that the parties are bound by the Agreement, including this clause 7.3.

8. PERSONAL PROPERTY SECURITIES ACT

8.1 PPSA: The parties agree that the supply of any Goods under the Agreement creates a security interest over those Goods, and all of the Client’s present and future rights in relation to the Goods and any proceeds in favour of Brightly that may be registered on the personal property securities register under the Personal Properties Securities Act 1999 (PPSA).

8.2 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 PPSA.

8.3 Contracting out: The Client agrees that sections 114(1)(a), 133 and 134 of the PPSA do not apply to the enforcement by Brightly of any security interest created or provided for by the Agreement to which Part 9 of the PPSA applies. The Client waives any rights it may have under sections 116, 120(2), 121, 125, 127, 129 and 131 of the PPSA on such enforcement.

8.4 Statements: The Client waives any right it may have to receive from Brightly a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to the Goods.

8.5 Care: Until title in Goods passes to the Client, the Client must:

a) use all reasonable efforts to protect the Supplier’s rights in the Goods, including making it Client to others that Brightly (and not the Client) owns the Goods;

b) not allow the Goods to become subject to any other security, encumbrance or lien of any kind;

c) not change its name without first informing Brightly; and

d) not allow the Goods to be used or installed in a way that results in it becoming a fixture to any land, including real property.

8.6 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 the 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.

9. INTELLECTUAL PROPERTY

9.1 Retained Intellectual Property: The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use in connection with the Goods, Services or Deliverables:

a) Intellectual Property that existed prior to the date of the Agreement; and

b) Intellectual Property that was developed independently of the Agreement.

9.2 Ownership going forward: Subject to clause 9.1, and unless otherwise set out in a Statement of Work or Service Schedule, all new Intellectual Property created or developed by a party under or in connection with the Agreement, is owned by the Client.

9.3 Licence to Brightly: The Client grants Brightly:

a) a royalty-free licence to use, to the extent necessary for Brightly to provide the Goods, Services and Deliverables, any software, documentation, and similar Intellectual Property provided by the Client to Brightly; and

b) to the extent not owned by Brightly, a royalty-free, irrevocable, and perpetual licence to use any know how, techniques, ideas, methodologies, and similar Intellectual Property used by Brightly in the provision of the Goods, Services and Deliverables.

10. AUDIT

10.1 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 Agreement. The costs of those audits will be borne by the Client.

10.2 Conditions: In conducting an audit, the Client must: a provide reasonable notice of the audit and only conduct it during normal business hours on working days; and b comply with Brightly’s reasonable security requirements.

11. FEES

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

11.2 Hourly Rates: Unless otherwise agreed in a Statement of Work, Service Schedule or Work or Goods Request, Brightly’s fees for the performance of the Services will be calculated on a time and materials basis at its standard hourly rates at the time it carries out the Services. Brightly’s rates are reviewed and updated from time to time. Brightly will notify the Client of any changes to its rates. Hours worked are charged in 15 minute block increments, rounded up to the nearest 15 minute interval. Any work that the Client requests to be carried out outside Business Hours will be charged in 30 minute block increments, rounded up to the nearest 30 minute interval, and at a rate of 1.5 times the standard rate.

11.3 Invoicing:

a) Brightly must provide the Client with valid GST tax invoices on the dates set out in the Statement of Work, Service Schedule or Work or Goods Request, or if there are none, monthly for Goods, Services and Deliverables provided in the previous month.

b) The Fees exclude GST, which the Client must pay on taxable supplies 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 or Goods Request, or if there are none, by the 20th of the month following the date of invoice; and

ii electronically in cleared funds without any set off or deduction.

11.4 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 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;

11.5 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.

11.6 Overdue amounts: Without limiting any other right or remedy available to Brightly, where any amount payable by the Client is overdue:

a) Brightly may restrict or suspend the provision of the Goods, Services and/or Deliverables;

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.

12. CONFIDENTIALITY

12.1 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 other party’s Confidential Information are aware of, and comply with, the provisions of this clause 12.1.

12.2 Disclosure required: The obligations of confidentiality in clause 12.1 do not apply to any disclosure:

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

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

c) of Confidential Information which:

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 the Agreement; or Confidential Brightly Terms of Trade 6 of 8

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 12.

12.3 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 the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.

13. LIABILITY

13.1 Maximum liability: The maximum aggregate liability of each 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 or Goods Request, must not exceed the Fees paid by the Client under that Statement of Work, Service Schedule or Work or Goods Request in the 12 month period preceding the date on which liability first arose; and

b) under or in connection with the Agreement (including any liability under clause 13.1a), must not exceed the Fees paid by the Client under the Agreement in the 12 month period preceding the date on which the liability first arose.

13.2 Unrecoverable loss: Except for the Client’s liability to pay the Fees, neither party is liable to the other for any loss of profit, data, savings, business, revenue, and/or goodwill, or other indirect, consequential or incidental loss or damage arising under or in connection with the Agreement.

13.3 Unlimited liability: Clauses 13.1 and 13.2 do not apply to limit

a either party’s liability for:

i personal injury or death;

ii fraud, wilful misconduct or gross negligence;

iii breach of clause 12; or

b the Client’s liability to pay the Fees.

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

13.5 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 the Agreement.

13.6 Insurance: At its own expense, Brightly must maintain in effect at all times during the term of the 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 the Agreement.

14. TERM AND TERMINATION

14.1 Termination of Agreement:

a Either party may terminate the 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 or Goods Requests in effect.

b Either party may, by notice to the other party, immediately terminate the Agreement if the other party:

i breaches any material provision of the Agreement and the breach is not:

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

▪ capable of being remedied;

ii 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 is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.

14.2 Termination of Statements of Work, Service Schedules and Work or Goods Requests:

a Each Statement of Work, Service Schedule and Work or Goods Request will terminate:

i on termination of the Agreement under clause 14.1b;

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

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

b Where a party has a right to terminate the Agreement under clause 14.1b it may, at its discretion and to the extent practicable, instead of terminating the Agreement in full, terminate an affected Statement of Work, Service Schedule or Work or Goods Request.

14.3 Consequences of expiry or termination:

a The Client must pay for Services provided before the expiry or termination date.

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

c If a Statement of Work, Service Schedule or Work or Goods Request is terminated without the Agreement being terminated, then the remaining portions of the Agreement (including any other Statements of Work, Service Schedules or Work or Goods Requests) continue in full force and effect.

14.4 Obligations continuing: Clauses which, by their nature are intended to survive expiry or termination, including clauses 8, 12, 13, 14.3 and 14.4, continue in force.

15. DISPUTES

15.1 Good faith negotiations: Before taking any Court action, a party must use their best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

15.2 Right to seek relief: This clause 15 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

16. GENERAL PROVISIONS

16.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the 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 as far as practicable.

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

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

16.4 Notices: A notice given by a party under the 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 14, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive of the other party.

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

16.6 Variation: Any variation to the Agreement must be in writing and signed by both parties.

16.7 Entire Agreement: The Agreement sets out everything agreed by the parties relating to the Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start. 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, and no such representation, warranty or agreement has any effect from the Agreement’s start. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 16.7.

16.8 Assignment: The Client may not assign or transfer any right or obligation under the Agreement without Brightly’s prior written approval (not to be unreasonably withheld). The Client remains liable for its obligations under the Agreement despite any approved assignment or transfer.

16.9 Law: The 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 the Agreement.

16.10 Counterparts: The Agreement (including the Statements of Work, Service Schedules and Work or Goods 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 the Agreement (including the Statements of Work, Service Schedules and Work or Goods Requests) by signing and sending (including by facsimile or email) a counterpart copy to the other party.