Brightmile AXA UK General Terms and Conditions
Definitions and Interpretation
1.1. Definitions In these Conditions, the following definitions apply:
Brightmile means Drivalytix Limited registered in England and Wales with company number 10996843 with registered address at 24 Old Queen Street, London, SW1H 9HP, UK;
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Business Hours means 9am to 5pm on any Business Day; Commencement Date means the date of acceptance of the Order by Brightmile or such later date as may be stated on the Order;
Conditions means the terms and conditions set out in this document as amended from time to time;
Confidential Information means any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to the business, affairs, customers, suppliers, employees, affiliates, products and/or methods of Brightmile or the Customer and disclosed to or otherwise obtained by the other party in connection with the Contract;
Contract means this contract between Brightmile and the Customer for the Services which incorporates these Conditions and the Order;
Customer means the person or firm who procures the Services from Brightmile, as stated in the Order;
Customer Default means any act or omission of the Customer or failure by the Customer to perform any relevant obligation which results in the prevention or delay of Brightmile's performance of any of its obligations under the Contract;
Data Protection Laws means the Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and the terms "Controller", "Processor" and "Personal Data" have the meanings given to them in such laws;
Downtime means the time in which any Service is Unavailable to the Customer, as monitored by Brightmile, other than (a) Service unavailability caused by scheduled maintenance of the platform used to provide the applicable Service (as notified to the Customer in writing at least three Business Days in advance); or (b) Service unavailability caused by events outside of the direct control of Brightmile or its subcontractor(s), including any force majeure event, the failure or unavailability of the Customer's systems, the internet, or the failure of any other technology or equipment used to connect to or access the Service;
Driver means any driver added to the Portal by the Customer and who has signed up to the Driver App;
Driver App means the application operated by Brightmile to be downloaded by each Driver to connect to the Platform;
Driver Rate means the fee payable for each Driver App, as set out on the Order; Fees means the Initial Fees, the Monthly Fees and the Renewal Fees; Fixed Term means a period of 12 months, unless specified otherwise in the Order; Force Majeure Event means any event which hinders, delays or prevents performance of a party's obligations and which is either beyond that party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock- outs or other industrial disputes (whether involving its own workforce or a third party's), failure or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, collapse of building structures, fire, flood, drought, storm, earthquake, epidemic, pandemic or similar events, or default of suppliers or subcontractors;
Initial Fees means the Initial Driver Volume (as defined in the Conditions) multiplied by the Driver Rate (as defined in the Conditions) multiplied by the length in months of the Fixed Term;
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Monthly Fees means, for each calendar month calculated on the 15th day of that month, (a) the number of Registered Drivers minus the Initial Driver Volume, multiplied by (b) the applicable Driver Rate;
Monthly Uptime Percentage means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month;
Order means the Customer's order for the supply of the Services as set out in a signed order document or quotation;
Platform means Brightmile's fleet management software back-end platform, through which Brightmile administers the Portal and the Driver App;
Portal means the driver management portal created and maintained by Brightmile, through which the Customer can access the Services;
Registered Drivers means the number of Drivers registered (i.e. invited, live, or inactive, but not archived) by the Customer on the Portal;
Renewal Fees means, in a Renewal Term, for each calendar month, (a) the Initial Driver Volume, multiplied by (b) the applicable Driver Rate; Service Data means the information and data made available by Brightmile to the Customer in connection with the Services including all data arising out of the use of the Driver App which shall include, but not be limited to, journey data;
Services means the driver management software services (including access to the Portal and the Driver App) to be provided by Brightmile under this Contract;
Special Conditions means any additional terms and conditions or amendments to these Conditions which may be agreed between the parties, and as set out in the Order;
Term means the period from the Commencement Date until termination or expiry of this Contract, howsoever caused, as more particularly set out in Condition 9;
Tier 1 Issue is a critical issue meaning that any Service is not capable of being accessed or used by the Customer;
Tier 2 Issue is an issue which renders the performance of any Service degraded but operational;
Tier 3 Issue means non-critical product questions relating to development, feature issues, and/or documentation;
Unavailable means (i) any Service fails to respond to a valid user request during two or more consecutive 90 second intervals by either timeout or server error, or (ii) data stored becomes inaccessible to Service users for a period longer than 90 seconds; and
VAT means value added tax at the then prevailing rate.
In these Conditions, the following rules apply:
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended, re-enacted or superseded from time to time and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(c) In the event of any inconsistency between these Conditions and any Special Conditions, the Special Conditions shall take precedence.
Performance of the Services
2.1. Brightmile shall from the Commencement Date and for the duration of the Term provide the Services to the Customer in accordance with this Contract in all material respects.
2.2. Brightmile shall ensure a 99.5% Monthly Uptime Percentage ("Monthly Uptime SLA") and shall deliver a Monthly Uptime Percentage report to the Customer each month.
2.3. To the extent that the Monthly Uptime SLA is not met for a given month, Brightmile will provide a credit against the Fees payable for such month calculated as follows:
Monthly Uptime Percentage Service Credit Less than 99.5% but greater than or equal to 99.2% 5% of the monthly Fees Less than 99.2% but greater than or equal to 99.0% 10% of the monthly Fees Less than 99.0% but greater than or equal to 98.7% 15% of the monthly Fees Less than 98.7% 20% of the monthly Fees
Any credit due under this Clause shall be automatically applied by Brightmile against any Fees due by the Customer for the month falling after the month for which the Monthly Uptime SLA was not met.
2.4. Brightmile warrants that it shall provide the Services and the Service Data with reasonable care and skill. 2.5. During the Term, Brightmile shall provide a support service to the Customer and use best endeavours to respond promptly (and in any event within five Business Hours in relation to Tier 1 Issues, two Business Days in relation to Tier 2 Issues, and three Business Days in relation to Tier 3 Issues) to requests for support from the Customer and from Drivers as notified to (a) firstname.lastname@example.org or via the in-app chat function of the Driver App, or (b) in the event of a Tier 1 Issue only, by phone call to Brightmile at +44 1780 322040.
3.1. Customer shall:
(a) ensure that the information submitted in the Order is complete and accurate; and
(b) provide such information to Brightmile as Brightmile may reasonably request for the purpose of providing the Services and ensure that such information is accurate in all material respects.
3.2. When using the Services, the Customer must comply with all applicable laws and the terms of this Contract. In particular, the Customer must not (and shall procure that (where applicable) each Driver shall not):
(a) use the Services or the Service Data in any unlawful manner or in a manner which promotes or encourages illegal activity or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Platform, any Service or any operating system;
(b) attempt to gain unauthorised access to the Platform or any networks, servers, operating systems or computer systems connected to the Platform;
(c) modify, adapt, translate or reverse engineer any part of the Platform or re-format or frame any portion of the Service Data, save to the extent expressly permitted by this Contract or applicable laws;
(d) infringe Brightmile's Intellectual Property Rights (including, without limitation, copyright infringement) or those of any third party in relation to the Customer's use of the Portal, the Service Data or the Services (to the extent that such use is not licensed by this Contract);
(e) transmit any material that is defamatory, offensive or otherwise objectionable or which may or is likely to damage the reputation of Brightmile in relation to the Customer's use of the Services or the Portal; and/or
(f) collect any information or data from the Portal (save as required for the purpose of obtaining the benefit of the Services) or Brightmile's systems or attempt to decipher any transmissions to or from the servers hosting the Platform or running any Service;
Fees and Payment
4.1. Brightmile shall invoice the Customer for the Fees as set out in this Condition 4.4.2. On or after the Commencement Date, Brightmile shall invoice the Customer for the Initial Fees. 4.3. After the Commencement Date, Brightmile may invoice the Customer for the Monthly Fees (if any) each month. For the avoidance of doubt, if the Monthly Fees are negative the Customer shall not be owed any credit by Brightmile. Invoices for Monthly Fees shall be sent at or after the end of each applicable month 4.4. In a Renewal Term (as defined in Condition 9 below) Brightmile shall invoice the Customer for the Renewal Fees each month. Invoices for Renewal Fees shall be sent at or after the first day of each applicable month.
4.5. All Fees are payable by the Customer in pounds sterling by direct debit or bank transfer within 30 days of the date of invoice. 4.6. All Fees are exclusive of VAT and any other applicable taxes. 4.7. All payments to be made by the Customer to Brightmile under this Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Customer is required by law to make any such deduction or withholding or the Customer has provided notice in writing that it disputes a particular amount. For the avoidance of doubt the Customer shall pay all undisputed amounts.
4.8. If the Customer fails to make payment of the Fees when due, Brightmile may:
(a) suspend the Customer's access to the Portal until all outstanding payments are received in cleared funds; and/or
(b) other than in relation to invoices that have been disputed by the Customer with reasonable grounds for such dispute, charge interest on the amount from the due date to the date of receipt by Brightmile (whether or not after judgment), at the annual rate of the lower of (i) 2% above the base lending rate from time to time of Barclays Bank plc, and (ii) the maximum amount permitted under UK law, in each case accruing on a daily basis and being compounded Quarterly until payment is made, whether before or after any judgment.
4.9. In the event that any sums due and owing under this Contract remain unpaid for 30 Business Days after their due date, and, provided always that Brightmile has notified the Customer that such outstanding sums remain unpaid, Brightmile shall be entitled to terminate this Contract on giving 5 Business Days' notice to the Customer.
- Intellectual Property Rights
5.1. The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Services are and shall remain the sole property of Brightmile or (as the case may be) the third party rights owner.
5.2. The Customer may use the Service Data only for the purpose of receiving the Services, and to that extent Brightmile grants to the Customer a limited, revocable, non-exclusive, royalty-free license to use the Service Data during the Term. The Customer shall not supply the Service Data to any third party or use the Services or the Service Data to provide a service to any third party without Brightmile's prior written consent. A breach of this Condition 5.2 shall be a breach of this Contract which is incapable of remedy.
5.3. Brightmile may inform third parties that it provides or has provided the Services to the Customer. The Customer licenses Brightmile to use its name and logo(s) for this sole purpose.
6.1. Nothing in these Conditions shall limit or exclude either party's liability for:
(a) death or personal injury caused by its negligence, or the negligence of any person acting on its behalf;
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful for either party to exclude or restrict liability.
6.2. Brightmile shall indemnify the Customer from and against all losses, costs, expenses and demands suffered by the Customer as a direct result of any actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the receipt, use or supply of the Services (Infringement Claim), provided that:
(a) the Customer shall, where reasonably practicable, give Brightmile a reasonable opportunity to remedy the Infringement Claim before the Customer incurs any liabilities in responding to the Infringement Claim itself, or as soon as practicable thereafter;
(b) where it is not possible to remedy the Infringement Claim in accordance with Condition 6.2(a), the Customer shall promptly allow Brightmile to assume full management of each Infringement Claim (at Brightmile's cost) and shall provide all reasonable assistance to Brightmile in managing the Infringement Claim; and
(c) Brightmile's liability in respect of each Infringement Claim, or series of related Infringement Claims, shall not exceed three times the total amount of Fees paid to the Brightmile under this Contract.
6.3. Subject to Condition 6.1, Brightmile shall under no circumstances be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for (a) any indirect, special, consequential or pure economic loss or damage; (b) any loss of profits, anticipated profits, revenue or business opportunities; or (c) damage to goodwill, in each case arising as a direct or indirect result of the relevant claim.
6.4. Subject to Conditions 6.1, 6.2 and 6.3, Brightmile's total aggregate liability for any event or series of related events, whether arising in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract or any collateral contract shall not exceed the total amount of Fees paid to the Brightmile under this Contract.
7.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Contract. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;\
was in the other party's lawful possession before the disclosure;
(b) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;\
is independently developed by the receiving party, which independent development can be shown by written evidence; or
(c) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
7.2. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Contract.
7.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Contract.
7.4. This Condition 7 shall survive termination of this Contract, however arising.
- Data Protection
8.1. Each term used in this Condition 8 shall have the meaning given in the Data Protection Laws unless otherwise stated.
8.3. Brightmile acknowledges and agrees that for the purposes of this Contract, to the extent more fully set out in the Privacy Policies, the Customer is the Data Controller and Brightmile is a Data Processor in respect of all Personal Data processed pursuant to this Contract.
8.4. The Customer shall comply with its obligations under Data Protection Laws in respect of all Personal Data Processed pursuant to this Contract. In particular:
(a) the Customer acknowledges and agrees that personal data may be transferred or stored outside the EEA or the country where the Customer is located, but only to locations that are compliant with the EU-US Privacy Shield, in order to carry out the Services and Brightmile’s other obligations under this Contract;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Brightmile so that Brightmile may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
(c) the Customer shall ensure that that it has all required data subject consents in place in respect of its processing of personal data of Drivers and authorised users of the Portal.
8.5. Brightmile shall use its reasonable commercial endeavours to:
(a) not do anything that would put the Customer in breach of the Data Protection Laws;
(b) put in place, before undertaking any processing, and maintain thereafter appropriate technical and organisational measures to protect against the unauthorised loss, disclosure or destruction of or damage to such personal data;
(c) maintain a record of all of its processing activities under or in connection with this Contract and of the measures implemented under this Condition 8;
(d) only transfer personal data to sub-processors where Brightmile has entered into a written contract with that third party under which that third party agrees to obligations that are equivalent to Brightmile's obligations set out in this Condition 8.5;
(e) at any time upon request, and in any event upon termination or expiry of this Contract, deliver up or securely delete or destroy all Personal Data in Brightmile's possession (except for such Personal Data which it is required to keep in compliance with applicable laws and/or the Data Protection Laws); and
(f) ensure its employees are subject to binding obligations of confidentiality in respect of Personal Data processed under this Contract.
8.6. If Brightmile becomes aware of or suspects a Personal Data Breach it shall notify the Customer without undue delay and in any event within 72 hours of becoming aware of it. Brightmile shall, at the Customer's cost, provide all assistance reasonably requested by the Customer. Brightmile shall take all reasonable steps to mitigate any risks of a Personal Data Breach occurring in the future.
- Term and Termination
9.1. The Contract shall commence on the Commencement Date for a Fixed Term. 9.2. Subject to Condition 9.6 below, neither party may terminate the contract during the Fixed Term.
9.3. Unless Brightmile is notified otherwise by the Customer in writing before the end of the Fixed Term, the Contract shall automatically renew for a further period of one year ("Renewal Term").
9.4. If the Customer is in a Renewal Term, either party may terminate the contract by giving one calendar month's written notice to the other party.
9.5. Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
(a) commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of being notified in writing to do so;
(b) is declared or becomes insolvent, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application, the entering into of a board resolution or the giving of any notice) by it or by any other person in respect of any of these circumstances (an Insolvency Event); or
(c) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
9.6. Without limiting its other rights or remedies, Brightmile may suspend provision of the Services under the Contract or any other contract between Brightmile and the Customer if the Customer becomes subject to an Insolvency Event or Brightmile reasonably believes that the Customer is about to become subject to any of them.
9.7. On expiry or termination of the Contract for any reason:
(a) the parties' rights and remedies that have accrued as at termination shall be unaffected;
(b) Conditions that expressly or by implication survive termination of the Contract shall continue in full force and effect;
(c) Brightmile shall automatically switch off all linked Driver Apps and access to the Portal within 5 Business Days from the date of notice of termination or, if later, the date of termination; and
(d) the Customer shall pay all rendered but unpaid invoices within 30 days of the date of the invoice, and Brightmile shall be entitled to render invoices to the Customer in respect of any Services rendered but which have not yet been invoiced, such invoices to be paid by the Customer within 30 days of the date of the invoice.
- Force majeure
10.1. Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
10.2. If either party is affected by a Force Majeure Event, it shall promptly notify the other party of the nature and extent of the circumstances and will make reasonable endeavours to mitigate the effects of such event on the performance of its obligations under this Contract.
11.1. Assignment, subcontracting and other dealings
Neither party shall, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.
11.2. Entire agreement
The Contract (incorporating these Conditions) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Brightmile which is not set out in the Contract.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Brightmile.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of or prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification or deletion of a provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand, by electronic mail or by pre-paid first-class post or by a signed-for next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or, if not signed for, at the time the notice is left at the correct address; (ii) if by electronic mail, on the day of delivery at the time recorded on the read-receipt; (iii) if sent by pre-paid first-class post, at 09:00 on the second Business Day after posting; and (iv) if sent by a signed-for next working day delivery service, at the time recorded by the delivery service.
11.7. Third party rights
No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms and the terms of the Contracts (Rights of Third Parties) Act 1999 are excluded to the fullest extent.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between Brightmile and the Customer, constitute either party the agent of the other party or authorise either party to make or enter into any commitments for or on behalf of the other party.
11.9. Governing law
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).