Sample Terms of Service for self-signup

1. This Subscription Agreement (“Agreement”) is entered into by and between Brandkit Limited (“Brandkit”), a New Zealand registered company, and the {{account.legal-name}} (“Customer”) at {{account.address}}. By using Brandkit’s Facility and services, the Customer agrees to the Terms of Service outlined below.
2. Brandkit offers to sell, and Customer agrees to purchase a Subscription to the Brandkit Pro Edition Plan with included Usage of {{plan.usage}} per {{plan.term}}, at a cost of {{account.currency}} {{plan.price}} per {{plan.term}}.
3. Customer agree to a Subscription Starting Date of {{subscription.startdate}}, for a Minimum Term of {{plan.term}}.
4. Customer agrees to pay a one-off setup fee of {{account.currency}} {{setup.price}}.
5. Customer agrees to pay Overage fees for any Usage that exceeds the included Usage, at the overage rate of {{account.currency}} {{overage.price}} per GB.
6. Customer agrees that Brandkit will issue subscription and setup invoices at the beginning of any subscription period, and overages at the end of any subscription period, or later at Brandkit’s discretion.
7. Customer agrees to pay invoices issued by Brandkit {{account.payment-terms}}.
8. Definitions – Certain terms are defined in this agreement.

• Brandkit means - Brandkit Limited, a New Zealand registered company, the provider and owner of the Brandkit service, and the name of the software as a service operated by Brandkit.
• Customer means - the organisation or person detailed in this Agreement, that contracts with Brandkit for the purposes of using the Facility to upload and distribute Brand Assets to Users.
• CPI means - the OECD Consumer Price Index published by https://www.oecd.org
• Facility means - the Brandkit website and software, an online Brand Asset Management application and storage facility, delivered as a service, which the Customer’s website runs on.
• User means - any person whether authorised or unauthorised that uses the Facility.
• Brand Asset means - one or more files that make up a logo, image, product, photograph, document, template, advertisement, video, audio recording, or other brand or marketing material held in the Facility.
• Knowledge means - any structured or unstructured data supplied, uploaded, written, saved by the Customer or Brandkit on the the behalf of the Customer to the Facility.
• Customer Data - means all data created, uploaded, by the Customer in the Facility, including Source Files, Knowledge, Metadata, tags, descriptions, user records, custom designs, access permissions, and any other customer-generated content or configuration data.
• Source File - means any individual digital file supplied by the Customer to Brandkit for upload to the Facility, or that is uploaded by the Customer to the Facility.
• Metadata means - the information that describes the Brand Assets or Knowledge, such as Asset Name, Description, Tags, Summary, etc
• Derivative Data means - any Meta Data, transaction, report, thumbnail generated by the Facility as a consequence of the Customer supplying or uploading Customer Data.
• File Format means - a file type, i.e. a file created with a particular application or encoded to a certain standard.
• Standard File Format means - a file type as set out in clause 16.
• Intellectual Property  includes - any trademarks, trade names, copyrights, patents, ideas, know-how, techniques, skills, inventions or improvements.
• Subscription  means - a recurring monthly or annual fee that covers the provision of the Facility and support to Customer.
• Variant means - version of a Brand Asset. For example, CMYK colour, SPOT colour, Black & White, etc.
• Plan means - a bundled combination of price, usage, storage capacity, options and features.
• AI Token means - the tokens provided by third party AI service providers that are consumed in AI powered workflows such as auto-tagging and auto-describing Brand Assets.
• Usage means - the combined Gigabytes used for file storage, file uploads, file downloads, CDN traffic, and AI tokens used (where one million tokens is equivalent to one Gigabyte.
• CDN Traffic means - the amount of traffic in Gigabytes used to serve Asset proxy images and other files, from AWS CloudFront,  to Facility users, and to users of third party websites when Customer has permitted embedded image links in those third party websites.
• AWS CloudFront means - an internet  service provided by Amazon Web Services to improve the delivery of images across the internet.
• User License Agreement means - the Terms of use accepted by all Users when registering to use the Facility.
• Fair Use Policy means  - the Fair Use Policy available at https://www.brandkitapp.com/fair-use-policy.
• Software Agent means - authorised 3rd party software or AI Agent via API.


9. Purpose - The purpose of the Facility is for the Customer to store their Brand Assets, and Knowledge in order to access, and permit other Facility Users, and Software Agents to access.


10. Subscription   - A monthly Subscription fee will be charged on the Starting Date and on the same date each calendar month, or an Annual Subscription fee will be charged on the Starting Date and on each anniversary of that date, at the rates detailed in this Agreement. Subscription fees may be adjusted on each anniversary of the Starting Date to reflect changes in the OECD Consumer Price Index (CPI), with a minimum of 2% and a maximum of 10% increase per year.


11. Setup - A Setup fee will be charged for any work carried out to set-up, configure and customise an Account for the Customer, prepare, upload, update  and/or publish Customer’s files or data to the facility, and provide any training for Customer employees,  at the rates detailed in clause 4 of this Agreement.


12. User Downloads - User Downloads of files will be free of charge and unlimited, but subject to the agreed Usage and Overage fees.


13. GST/VAT/Tax – All fees and charges are quoted exclusive of GST, VAT and any government taxes.


14. Payment - Payments are due on the day specified in clause 7 of this Agreement by direct bank payment, direct credit, or telegraphic transfer to the bank account of Brandkit Limited, or by Credit Card payment.


15. Minimum Term – This agreement is for a minimum period of the Minimum Term from the Starting Date, as detailed in the clause 3 of this Agreement.  At expiry of the Minimum Term, this agreement will continue to roll over month by month, or year by year, until a new agreement is made, or until either party formally terminates as per clause 16 of this agreement.

16. Termination -  Either party may terminate the Agreement by giving one month written notice of termination to the other party, or immediately if the other party breaches any provision of the Agreement or becomes unable to pay its debts as they fall due:

    1. If Customer terminates and the effective termination date is prior to the end of the Minimum Term, the Customer will pay the balance of the remaining Minimum Term calculated as; the number of months remaining, multiplied by the average monthly charge made during the Minimum Term.
    2. Upon termination the Customer shall pay to Brandkit all amounts due for time spent and materials used up to the date of termination, including for support and the use of the Facility by the Customer’s authorised users, for any charges due in the event of termination by the Customer.
    3. If Customer terminates, it is the Customer’s responsibility to ensure all Customer Data (including Source Files, metadata, tags, and configuration data) is downloaded or exported prior to termination, and Brandkit shall not be liable for any costs in relation to recovery or recreation of any Customer data after termination.
    4. If Customer terminates, Brandkit will optionally provide a Data Download Service service to the Customer for a mutually agreed fee, whereby Brandkit downloads all the Customers Source Files and delivers these to the Customer.
    5. If Brandkit terminates, it is Brandkit’s responsibility to ensure all Source Files are downloaded and supplied on suitable media to the Customer, and to provide an export of all Customer Data (including metadata, tags, user records, and other customer-generated data) prior to termination, and Brandkit shall not be liable for any costs in relation to recovery or recreation of any Customer Data including Source Files) or any Derivative Data, after termination.
    6. Upon termination and after settlement  of all amounts due, Brandkit shall permanently delete from the Facility all of the Customer Data from the Facility.

17. In the event the Facility becomes unavailable due to disaster and disaster recovery procedures fail to bring the Facility back online within a reasonable timeframe, Brandkit will provide the Customer with alternative access to the Customers Source Files, promptly and free of charge.

18. Supply of Brand Assets

    1. The Customer shall supply to Brandkit, or directly upload, all Source Files and Knowledge that the Customer wishes to be held in the Facility. The Source Files and Knowledge shall be non-corrupted and substantially clear and free of errors, and supplied in a Standard File Format.
    2. If the Customer modifies its Brand Assets or Knowledge, it shall supply the new versions of the Source Files and Knowledge to Brandkit for upload or upload to the Facility directly, and update the associated Metadata in the Facility,  in a timely fashion.
    3. The Customer shall bear all costs of creation, redesign and supply of Brand Assets, Knowledge and Customer Data.

19. Brandkit rights and obligations - Brandkit shall:

    1. Maintain the Facility and use its best endeavours to ensure an uninterrupted and error-free service; and ensure the Brand Assets, Knowledge and Customer Data are substantially clear, free of errors and usable by end users for the purpose of commercial reproduction and use to an acceptable standard.
    2. Brandkit may permit end users to download the Customer’s Brand Assets, or access the Customer’s Knowledge, on the terms and conditions set out in the User License Agreement, subject to the access permissions set by the Customer or by Brandkit on the Customer’s behalf.

20. Intellectual Property

    1. Brandkit acknowledges that the Customer retains sole ownership of all rights in and to the Customer’s Intellectual Property.
    2. The Customer acknowledges that Brandkit retains sole ownership of all rights in and to Intellectual Property, created or developed in connection with the Facility, and by Brandkit.
    3. The Customer shall use its best endeavours to ensure that any Brand Assets, Knowledge or Customer Data supplied by the Customer to Brandkit or uploaded directly to the Facility do not infringe the Intellectual Property rights of any third party.
    4. Brandkit warrants to the best of its knowledge that:
       1. Any Intellectual Property rights provided to the Customer by Brandkit do not infringe the industrial or Intellectual Property rights of any third party or person; or
       2. Where third party Intellectual Property rights are used to fulfil the services, then Brandkit has been granted a licence to use such Intellectual Property rights. 
    5. Where, for whatever reason, the Intellectual Property or the Facility provided by Brandkit is no longer available, Brandkit will be responsible for ensuring uninterrupted access for the Customer to the Facility by way of replacement Intellectual Property licence.
    6. Brandkit shall not be liable for any infringement of Intellectual Property rights of any person arising in respect of: (a) the use of any Intellectual Property not provided by Brandkit; (b) the modification of the Facility by any party other than Brandkit; or (c) Brand Assets or Customer Data supplied to Brandkit or uploaded directly to the Facility, by or on behalf of the Customer.

21. Brandkit’s Liability -  

    1. The Customer acknowledges that Brandkit does not warrant that the Facility will be uninterrupted or error free and gives no warranty as to the results to be obtained from use of the Customer Data.
    2. Service credits provided under the applicable Service Level Agreement (available to view at https://brandkit.com/sla) are the sole and exclusive remedy for availability or uptime issues.
    3. Brandkit shall not be liable to the Customer for, and the Customer releases and discharges Brandkit from any and all claims and demands in respect of: (a) Any consequential, indirect, special, incidental, or punitive damages including but not limited to lost profits, lost revenue, business interruption, loss of business opportunity, or reputational harm; (b) Any loss or damage arising directly or indirectly in connection with this Agreement, the Facility, or the use of Customer Data held on the Facility.
    4. Where the exclusion in clause 21.3 is held to be invalid or unenforceable for any reason, Brandkit’s total aggregate liability under this Agreement for any and all claims shall be limited to the amount of fees paid by Customer in the three (3) month period immediately preceding the event giving rise to the claim.
    5. The liability cap in clause 21.4 does not apply to: (a) Gross negligence or willful misconduct by Brandkit; (b) Breach of confidentiality obligations under this Agreement; (c) Claims that cannot be limited by law.

22. Consumer Guarantees Act Excluded - The Customer acknowledges and agrees that all services it acquires from Brandkit are acquired for the purpose of a business and accordingly the NZ Consumer Guarantees Act 1993, and other New Zealand or international consumer protection regulation does not apply.


23. Standard File Formats - Source Files to be held on the Facility shall be supplied by the Customer in the following file formats/types:
    AI, EPS, GIF, JPG, JPEG, PDF, PNG, PSD, TIF, TIFF,MP4,MP3,MOV, AVI, BMP, CDR, DCR, DOC, FHD, FH9, FH5, FH8, FLA, INDD, KEY, M4V, MPG, PCX, PCT, PICT, PIX, PPT, PPTX, POT, POTX, PPS, PPSX, RTF, SWF, TGA, TXT, WMV, WAV, ZIP
    Other formats may be supported. File formats supported may change at any time.

24. Subscription and Plan

    1. Changes by Brandkit - Brandkit reserves the right to, and may adjust the Plan inclusions and price, or Subscription fees at any time with one month’s written notice.
    2. Where a Minimum Term is agreed, Brandkit agrees not to alter the agreed Plan inclusions and price, or Subscription fees, except by mutual agreement and one month’s written notice.
    3. Where no Minimum Term is agreed or the Minimum Term has expired; Customer may change Plan at any time, with the understanding that changes may affect the ability to store or access existing data if the new Plan has insufficient capacity, or that some functionality may or may not be available in any new Plan, and Brandkit may adjust the Plan at any time and/or Subscription fee with one months written notice. Customer also acknowledges that it must pay any fees or charges applicable to the previous Plan for any unpaid period prior to the Plan change.
    4. Where a Minimum Term is agreed, and the Minimum Term has not yet expired, Customer may upgrade to a more expensive plan at any time, but may not downgrade to a less expensive plan.

25. Fair Use - Customer acknowledges that this agreement is subject to Brandkit’s Fair Use Policy (https://brandkit.com/fair-use-policy)

26. New Zealand Law Applies - Brandkit is located in New Zealand and all services we provide are provided in New Zealand under New Zealand law. You may take action against Brandkit only in a New Zealand court. This applies whether you are using the Facility from inside or outside New Zealand.


27. Assignment, Transfer or Subcontracting -  The Customer may assign, transfer or sub-contract all or any part of its interest or obligations under this agreement to a third party, with the prior written consent of Brandkit, which will not be unreasonably withheld by Brandkit.