Terms
of Trade

1. Definitions

In this agreement, the following definitions apply unless otherwise specified:

• ‘Confidential information’ includes:
  
  – Source code and other aspects of the backend design developed for the client; and
  
  – Any other material that the client advises Brigada is confidential.
  
  ‘Confidential information’ does not include material that is already publicly available or lawfully becomes publicly available after it is received from the client.
• ‘Speculative works’ shall include any work submitted to the client or third party by Brigada on a speculative basis.
• ‘Intellectual Property’ means all intellectual property rights including, but not limited to copyright, inventions, patents and patent applications, trademarks, software, source codes, text, images, designs, logos, data sets, and trade secrets.
• ‘Statement of Work’ means the document in an agreed form, including: Statement of Work (SOW), Web Proposal, RFP, Quote, which records the Goods and/or Services which Brigada agrees to provide and (unless otherwise stated in the Statement of Work) incorporates the terms of this Agreement in relation to the supply of those Goods and/or Services.

2. Payment

For credit accounts, invoices will be issued on the last day of the month with payment due on the 20th of the month following.

All invoices are emailed only — the client bears the responsibility to regularly check their email.

• If an account remains unpaid 30 days from the time of its receipt, Brigada reserves the right to charge interest at 1.5% per month or the maximum rate permitted by applicable law, whichever is lower.
• If an outstanding balance reaches 60 days past the due date, no new work will commence until the entire outstanding balance is cleared.
• If an outstanding balance reaches 90 days past the due date the outstanding balance will be passed to debt collection unless prior arrangements have been made. If a client’s debt is passed onto a third party, the client will incur ALL associated costs, including debt collection process cancellation fees if incurred.

Source code will remain the property of Brigada and be stored on Brigada’s server until payment is received in full, after which it will be released to the client.

3. Planning & Client’s Instructions

• Proposals, estimates and specifications shall be deemed to interpret the client’s instructions. Clients are advised to exercise care and attention when checking these documents before work begins.
• Proposals shall lapse unless accepted within 60 days from the day given, unless otherwise stated.
• Work will be developed to meet the requirements of the latest version of a specification or estimate that has been signed off by the client.
• Brigada shall not be held liable for errors and omissions arising from an oversight or a misinterpretation of a client’s verbal instructions.
• Brigada reserves the right to review and/or alter pricing in the event of changed client requirements after the acceptance of a quote or proposal.

4. Speculative Works

Speculative Works shall remain the property of Brigada, unless the client agrees to proceed with utilising the work and pays in full for such work, in which case Brigada assigns to the client all rights, including copyright, of these Speculative Works with effect from the date Brigada receives payment for such works. No use of Speculative Works, or any idea obtained from such work, shall be used by the client unless paid for in full or the express written agreement from Brigada is obtained.

5. Inactive, Suspended and Cancelled project

If work is held awaiting client instructions for longer than 14 days without prior arrangement, Brigada reserves the right to discontinue the project and invoice work done to date and materials used in that work.

The suspension of any work at the client’s request will entitle Brigada to full payment for all work and/or services in progress at the time of suspension and for any work already completed that has payment outstanding. Brigada reserves the right to refuse the quotation for the uncompleted portion of the contract if work is suspended for more than 30 days.

If a project is terminated before completion, Brigada will be compensated for all fees and disbursements incurred up to the date of termination.

6. Project Rescheduling

Brigada requires content, design feedback and final launch feedback in a timely manner.

• If a project milestone is rescheduled more than 4 times we reserve the right to put the project on hold, invoice completed work and charge a rescheduling fee when the project is resumed.
• If a project milestone is rescheduled more than 2 times we reserve the right to charge a rescheduling fee to cover administration costs.

7. Copyright, Intellectual Property and Confidentiality

Trademarking, protection and management of IP and infringements are the sole responsibility of the client. Brigada will not be liable for any costs or losses, real or otherwise, that may be incurred.

Except for any third-party software or pre-existing software (including but not limited to code libraries and frameworks) belonging to Brigada, all intellectual property developed relating to the Website shall be the sole property of the client.

The client will, upon payment in full for the work, receive a non-exclusive, royalty-free license to utilise to use any pre-existing software belonging to Brigada and any third-party software that may be required to operate or maintain the Website.

Upon completion of the project, Brigada will also receive an irrevocable, royalty-free license to utilize the Intellectual Property created by Brigada and employed in the website solely for the purpose of:

• Featuring the work in Brigada’s portfolio;
• Using it as a case study or example of Brigada’s work;
• Internal training and development purposes; and
• Developing internal processes and methods.

Brigada will not use the client’s Intellectual Property in ways that compete with the client or provide similar services to the client’s competitors without prior written consent.

Brigada will treat all confidential information belonging to the client in the strictest confidence and will not, without the prior written approval of the client:

• Disclose the confidential information to any person or organisation outside Brigada; or
• Disclose the confidential information to any director, employee, or agent of Brigada who does not need to know the Confidential Information for the purpose of this Agreement; or
• Use any of the confidential information other than for the purpose of this Agreement or otherwise in any way which will be detrimental to or in conflict with the interests of the client.

8. Hosting

If the Client retains Brigada to host a website it is understood that:

• Hosting is not guaranteed to be live 100% of the time due to its dependency on servers that require software upgrades and possible technical challenges which may interrupt its service.
• Brigada will charge fees for hosting and domain registration that are non-refundable. If unpaid, Brigada reserves the right to shut down the website until such time as full payment is received.
• Any website that Brigada deems posing a risk to either the security of their server and/or other client sites, may be advised that the service will be immediately discontinued and requested to find an alternative host at their own cost.
• Brigada will not be liable for any loss that may be incurred in relation to the services provided, third party apps, hosting, hacks or breaches of security.

9. Claims for Remedy

Any complaint shall be made in writing within 30 days of receipt of goods or services in order to remedy faults or complaints. Any disputes pertaining to invoices received after 30 days will be null and void.

10. Outside Influences

Brigada shall not be responsible for any delay, default loss or damage due to any industrial disputes, accidents, hackers, Acts of God, equipment failure or mischievous damage or other causes beyond Brigada’s control.

11. Liability & Indemnity

To the maximum extent permitted by law, Brigada shall not be liable to the client for any indirect, special, incidental, consequential, punitive or exemplary damages including any lost profits, lost business opportunities, loss of data, or business interruption.

For direct damages, Brigada’s total aggregate liability under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total fees paid by the client to Brigada under the project’s statement of work.

Nothing in these terms limits or excludes any liability that cannot lawfully be limited or excluded under New Zealand law, including liability for death or personal injury caused by negligence, or liability for fraud or fraudulent misrepresentation.

The client shall indemnify Brigada against all claims by third parties resulting from the client’s use of the services or deliverables, except to the extent such claims result directly from Brigada’s breach of this agreement.

12. Technology

Brigada only supports technologies for browsers and computer settings that were current at the time of development, and up to 6 months post launch. Digital third-party platforms including CMS platforms, browsers, plugins, APIs or licensed products can become out-of-date and unsupported by their providers over time. These situations are entirely out of Brigada’s control.

We accept no responsibility if technology changes, and a product or service is no longer accessible, or a third-party changes its pricing model.

Brigada will not actively build or develop on unsupported digital third-party platforms and will advise suitable upgrades or alternatives which will involve investment if required. Maintenance in some circumstances may still be available for short-term fixes however no responsibility can be taken by Brigada for the security or stability of such work.

13. Illegal or Libellous Matter

Brigada shall be indemnified by the client in respect to any claims, costs end/or expenses arising from any matter, which is illegal, libellous in matter or in breach of the Fair Trading Act 1986 or any other statute or any infringement of copyright, patent or design.

14. Removal of Material from Server

Brigada reserves the right at all times to remove without notice a client’s material from its servers if Brigada deems material on the client’s website to be of an illegal and/or libellous nature.

Brigada reserves the right at all times to remove without notice a client’s material from its servers for failure to pay fees owed in accordance with Brigada’s payment terms.

15. Suitability

No guarantee shall be given or implied that the goods or services supplied in accordance with the client’s instructions, or designed by Brigada in accordance with those instructions, are suitable for specific market requirements unless those are documented and/or form part of the original proposal.

16. Consultation

Brigada agrees to ensure full consultation with the client throughout the development process.

17. Consumer Guarantees Act 1993

Where the client is acquiring our goods or services for business purposes within the meaning of the Consumer Guarantees Act 1993, the client agrees that the Consumer Guarantees Act 1993 does not apply to those goods or services. Where the client is a consumer (not acquiring goods or services for business purposes), nothing in these terms affects the client’s rights under the Consumer Guarantees Act 1993, which cannot be contracted out of.

18. Governing Law

This contract shall be governed by New Zealand law and the client and Brigada submit to the exclusive jurisdiction of the New Zealand Courts.

19. Dispute Resolution

You will not commence any court or arbitration proceedings relating to a question, difference or dispute relating to this agreement, unless you have first complied with this section.

Where any Dispute arises, you (or your representative) and Brigada will meet and negotiate in good faith in an attempt to resolve the Dispute amicably by good faith discussion.

Where the representatives of the parties do not resolve the Dispute within five (5) Business Days (or as agreed) of initiating negotiations, the relevant parties agree to mediate any Dispute in terms of the Resolution Institute standard Mediation Agreement (NZ version). The mediation will be conducted by a mediator, and the costs of the mediation will be borne by the party raising the dispute unless otherwise agreed or determined by the mediator.

If the parties fail to settle the Dispute by mediation, then either party may initiate arbitration (but not litigation) in accordance with the Arbitration Act 1996 to resolve the Dispute.

Nothing in this section will preclude a party from taking immediate steps to seek urgent injunctive or equitable relief before an appropriate court.

20. Privacy

Brigada will comply with the Privacy Act 2020 and its Information Privacy Principles in all dealings with personal information.

The client authorizes Brigada to collect, use, store and disclose personal information for the purposes of:

• Providing services to the client;
• Credit checking and account management;
• Marketing Brigada’s products and services; and
• Complying with legal requirements.

Where Brigada acts as a processor of personal information on behalf of the client, Brigada will:

• Process personal information only on documented instructions from the client;
• Implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk;
• Assist the client in responding to requests from data subjects;
• Notify the client without undue delay after becoming aware of a personal data breach; and
• At the choice of the client, delete or return all personal information after the end of the provision of services.

The client warrants that it has obtained all necessary consents and provided all necessary privacy notices to allow Brigada to process personal information as contemplated by this agreement.

The client acknowledges that Brigada may disclose information concerning the credit or business standing of the client to credit reporting agencies or associations in accordance with the Privacy Act 2020.

21. Service Level Agreements

For hosting services, Brigada targets a 99.5% uptime measured on a monthly basis, excluding scheduled maintenance windows. Scheduled maintenance will be performed during off-peak hours.

22. Acceptance Testing

Upon delivery of any milestone or completed work, the client shall have 10 business days (“Acceptance Period”) to inspect and test the deliverables for conformity with the specifications in the Statement of Work.

If the client believes the deliverables do not conform to the specifications, the client must provide written notice to Brigada within the Acceptance Period, detailing the specific non-conformities (“Rejection Notice”).

Brigada shall use reasonable efforts to correct the non-conformities identified in the Rejection Notice within a reasonable time and redeliver the corrected deliverables to the client, after which a new Acceptance Period of 5 business days shall begin.

If the client does not provide a Rejection Notice within the Acceptance Period, or if the client uses the deliverables in a production environment or for commercial purposes, the deliverables shall be deemed accepted.

Minor defects that do not materially affect the functionality of the deliverables shall not be grounds for rejection and shall be remedied as part of ongoing maintenance and support.

23. Change Management

If either party wishes to change the scope of the services or deliverables described in the Statement of Work, the following process shall apply:

1. The requesting party shall submit a written change request detailing the proposed changes.
2. Within 5 business days, Brigada shall evaluate the feasibility, impact on schedule, and cost implications of the proposed change.
3. Brigada shall provide a written response including estimated additional fees, timeline adjustments, and any other impacts.
4. The client shall have 5 business days to approve or reject the change proposal in writing.

Work on the original scope shall continue during the change evaluation process unless otherwise agreed in writing.

Brigada reserves the right to adjust prices, delivery schedules, and other terms as necessary to account for authorized changes.

24. Force Majeure

Neither party shall be liable for any delay or failure to perform its obligations under this agreement (excluding payment obligations) if such delay or failure results from circumstances beyond its reasonable control, including but not limited to:

• Acts of God, natural disasters, or extreme weather events;
• War, terrorism, riots, civil unrest, or governmental action;
• Epidemics, pandemics, or widespread disease;
• Labor disputes or strikes;
• Cyberattacks, system failures, or telecommunications breakdowns not attributable to the party;
• Power failures or energy shortages; or
• Inability to secure necessary materials or services from usual sources.

The affected party shall:

1. Promptly notify the other party of the force majeure event and its expected duration;
2. Use reasonable efforts to mitigate the impact and resume performance as soon as possible; and
3. Provide regular updates on the situation.

If a force majeure event continues for more than 60 consecutive days, either party may terminate the affected Statement of Work upon written notice without liability, except for payments due for services rendered prior to the force majeure event.

25. Term and Termination

This agreement shall commence on the date the client accepts a Statement of Work and shall continue until all services under all Statements of Work have been completed and paid for, unless earlier terminated as provided herein.

Either party may terminate this agreement or any Statement of Work:

• For convenience upon 30 days’ written notice to the other party;
• For material breach, if the other party fails to cure such breach within 14 days after receipt of written notice; or
• Immediately, if the other party becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to bankruptcy or similar proceedings.

Upon termination:

1. The client shall pay Brigada for all services rendered and expenses incurred up to the effective date of termination;
2. If terminated for Brigada’s material breach, the client shall only be liable for payment for conforming services actually delivered;
3. If terminated for the client’s material breach or for convenience, the client shall pay Brigada for all services rendered, expenses incurred, and non-cancellable commitments made; and
4. Each party shall return or destroy all confidential information of the other party.

The following provisions shall survive termination: Intellectual Property, Confidentiality, Payment, Liability & Indemnity, Dispute Resolution, and any other provision which by its nature should survive.

26. Maintenance and Support

Unless otherwise specified in the Statement of Work, Brigada will provide 3 months of basic support following project completion at no additional charge. Basic support includes:

• Bug fixes for issues identified during the support period;
• Minor content updates (up to 2 hours per month); and
• General guidance on website operation.

For ongoing support beyond the initial period, the client may purchase a Support Package, which will be detailed in a separate agreement. Support Packages may include:

• Regular maintenance and security updates;
• Technical support via email or telephone;
• Monitoring and performance optimization; and
• Content updates and minor feature enhancements.

Support hours are Monday to Friday, 9:00 AM to 5:00 PM NZST, excluding public holidays.

Support does not include:

• Development of new features;
• Extensive redesign or restructuring;
• Fixing issues caused by client modifications;
• Third-party software not installed by Brigada; or
• Training beyond what is specified in the Statement of Work.

27. Data Ownership and Processing

All data provided by the client or collected on the client’s behalf (“Client Data”) remains the exclusive property of the client or its customers. Brigada acquires no rights to Client Data other than the limited rights necessary to perform the services.

Brigada will:

• Process Client Data only as necessary to provide the services;
• Implement appropriate technical and organizational measures to protect Client Data;
• Not use Client Data for any purpose other than providing the services;
• Not disclose Client Data to any third party without the client’s prior written consent, except as required by law;
• Notify the client promptly if Brigada receives any request or demand for Client Data from a government authority; and
• Upon termination of services, return or delete all Client Data as instructed by the client.

The client represents and warrants that it has all necessary rights, consents, and permissions to provide the Client Data to Brigada and to permit Brigada to process the Client Data as contemplated by this agreement.

If Brigada processes personal information on behalf of the client, the provisions of Clause 20 (Privacy) shall also apply.

28. Assignment

Neither party may assign, transfer, or subcontract this agreement or any rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld.

Notwithstanding the foregoing, either party may assign this agreement to a successor entity in connection with a merger, acquisition, or sale of all or substantially all of its assets upon written notice to the other party.

Any attempted assignment in violation of this clause shall be null and void.

Brigada may subcontract portions of the services to qualified third parties, provided that Brigada shall remain fully responsible for the performance of any subcontracted services.

29. Entire Agreement

This agreement, together with any Statements of Work, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral.

No modification, amendment, or waiver of any provision of this agreement shall be effective unless in writing and signed by both parties.

The parties acknowledge that they have not relied on any statement, promise, or representation made or given by or on behalf of the other party that is not set out in this agreement.

In the event of any conflict between these terms and conditions and the provisions of a Statement of Work, the provisions of the Statement of Work shall prevail to the extent of the conflict.

30. Severability

If any provision of this agreement is held to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, or, if not possible, severed from this agreement.

The remaining provisions of this agreement shall continue in full force and effect, and the validity, legality, and enforceability of such remaining provisions shall not be affected or impaired.

The parties shall negotiate in good faith to replace any invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that achieves, to the greatest extent possible, the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.