Terms of Service

3.1.1 Add-on means - an optional service, feature or capacity increase that is not included in the Subscription unless detailed in this Agreement.

3.1.2 AI Features means - any part of the Facility that uses artificial intelligence or machine learning, including automated tagging, descriptions, summaries and search.

3.1.3 AI Output means - any Metadata, text, tag, summary, Search Vector or other content generated by AI Features.

3.1.4 AI Provider means - a third party that supplies AI models or services used to deliver AI Features, engaged either by Brandkit or directly by the Customer under clause 3.21.8.

3.1.5 AI Tokens means - the units of data processed by an AI model when AI Features are used.

3.1.6 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.

3.1.7 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.

3.1.8 Brandkit API means - the official Brandkit API provided and authorised by Brandkit.

3.1.9 Brandkit MCP means - Brandkit's Model Context Protocol server - an API designed for access by AI assistants and agents.

3.1.10 Brandkit Platform means - the Facility.

3.1.11 CDN Traffic means - the amount of traffic in Gigabytes used to serve Asset proxy images and other files, from Brandkit's content delivery network, to Users, and to visitors of third-party websites where the Customer has permitted embedded image links on those websites.

3.1.12 CPI means - the annual Consumer Price Index for the OECD Total, as published by the OECD at https://www.oecd.org.

3.1.13 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.

3.1.14 Customer Data means - the Source Files, Knowledge, Metadata, designs, and any other data supplied to Brandkit by the Customer, for upload to, or that is uploaded directly to the Facility, and all Derivative Data.

3.1.15 Derivative Data means - any Metadata, transaction, report, thumbnail, AI Output or other data generated by the Facility, including by AI Features, as a consequence of the Customer supplying or uploading data to the Facility. Derivative Data forms part of Customer Data.

3.1.16 Facility means - the Brandkit website, infrastructure, design and software, an online Brand Asset Management application and storage facility, delivered as a service.

3.1.17 Fair Use Policy means - the Fair Use Policy available at https://brandkit.com/fair-use-policy.

3.1.18 Intellectual Property includes - any trademarks, trade names, copyrights, patents, ideas, know-how, techniques, skills, inventions or improvements.

3.1.19 Knowledge means - any structured or unstructured data supplied, uploaded, written, saved by the Customer or Brandkit on behalf of the Customer to the Facility.

3.1.20 Metadata means - the information that describes the Brand Assets or Knowledge, such as Asset Name, Description, Tags, Summary, etc.

3.1.21 Plan means - a bundled combination of price, usage, storage capacity, options and features.

3.1.22 Search Vectors means - numerical representations of Customer Data generated by an AI model and used to provide search, similarity and related features within the Facility. Search Vectors are AI Output.

3.1.23 Software Agent means - an authorised third-party software or AI agent accessing the Facility via the Brandkit API, the Brandkit MCP, or by any other means.

3.1.24 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.

3.1.25 Standard File Format means - a file type as set out in clause 3.16.

3.1.26 Subscription means - a monthly or annual fee that covers the provision of the Facility and support to Customer.

3.1.27 Usage means - the combined gigabytes used for file storage, file uploads, file downloads, CDN Traffic and AI Tokens. AI Tokens are converted to a gigabyte equivalent at the rate published at https://brandkit.com/pricing. Brandkit will show AI Token usage in the Customer's account usage reports.

3.1.28 User means - any person who uses the Facility through the Customer's account, including: (i) registered users, who have registered and are permitted access by the Customer; and (ii) unregistered users, being members of the public who access Customer Data that the Customer has made publicly available through its account settings, without registering.

3.1.29 User License Agreement means - the Terms of use that apply to all Users, accepted by registered users when registering, and by both registered and unregistered users when downloading Customer Data.

3.1.30 User Role means - the set of permissions assigned to a User whether a member of the public, or a registered user.

3.4.1 Setup - A separate Setup fee may be charged for any work carried out by Brandkit to set-up, configure and customise an account for the Customer, at the rates detailed in this Agreement. These fees do not apply where they are included in the Plan or Subscription, as detailed in this Agreement.

3.4.2 Training - Initial training and onboarding is provided free of charge for Customer staff with a User Role with admin access. A separate training fee may be charged for additional, or follow-up training requested by Customer.

3.4.3 Data Migration and Content Management Services - Data migration, and the preparation, upload, update and/or publishing of Customer Data by Brandkit are optional services, are not included in the Subscription, and will be charged for separately at an agreed rate, either detailed in this Agreement or as quoted by Brandkit in writing.

3.4.4 Add-ons - Brandkit offers optional Add-ons, such as additional capacity and additional features. Add-ons are not included in the Subscription unless detailed in this Agreement. Add-ons may be charged as a one-off setup fee, an additional recurring fee, or both, as detailed in this Agreement or as quoted by Brandkit in writing. Recurring Add-on fees are billed with the Subscription. Add-ons added during the Minimum Term continue until the end of the Minimum Term.

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

3.7.2 Late Payment and Suspension - If an invoice remains unpaid after its due date, Brandkit may suspend access to the Facility until it is paid. Customer Data is not deleted during a suspension, and the Customer remains liable for all fees during the suspension.

3.9.1 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, except as provided in clause 3.9.5 or clause 3.10.

3.9.2 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 Users, for any charges due in the event of termination by the Customer.

3.9.3 If Customer terminates, it is the Customer's responsibility to ensure all Customer Data (including Source Files) is downloaded prior to termination, and Brandkit shall not be liable for any costs in relation to recovery or recreation of any Customer Data after termination.

3.9.4 If Customer terminates, Brandkit will optionally provide a Data Download Service to the Customer for a mutually agreed fee, whereby Brandkit downloads all Customer Data and delivers it to the Customer.

3.9.5 If Customer terminates because Brandkit has materially breached this Agreement, Customer will not be liable for Subscription fees for the remaining Minimum Term.

3.9.6 If Brandkit terminates, it is Brandkit's responsibility to ensure all the Customer's Source Files are downloaded and supplied on suitable media, to the Customer, and Brandkit shall not be liable for any costs in relation to recovery or recreation of any Customer Data (including Source Files), after termination.

3.9.7 If Brandkit terminates for cause (e.g. Customer breach or insolvency), Brandkit will retain all prepaid fees and Customer remains liable for the remaining Minimum Term. If Brandkit terminates without cause (i.e. simply choosing to end the Agreement), Brandkit will refund a pro-rata portion of prepaid fees.

3.9.8 Upon termination and after settlement of all amounts due, Brandkit shall permanently delete all of the Customer Data from the Facility, except records Brandkit must keep for billing, legal or audit purposes.

3.9.9 In the event that 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 Customer's Source Files, promptly and free of charge.

3.10.1 30-Day Guarantee - If the Customer cancels within 30 days of the Starting Date (for any reason), Brandkit will refund all paid Subscription fees in full. This does not include any invoiced or paid setup fees, which are non-refundable.

3.10.2 Annual Subscription Cancellation - Annual Subscriptions are a 12-month commitment, paid in advance. Once the 30-day guarantee in clause 3.10.1 has passed: (i) Brandkit will not issue a credit for the period between the cancellation date and the end of the annual term; except that (ii) if Customer cancels within the first 3 months of the first annual period, Brandkit will refund 50% of the prepaid annual Subscription fees.

3.10.3 For clarity, Money Back Guarantee clauses 3.10.1 and 3.10.2 override clause 3.9.1 where they apply — Customer will not be liable for the remaining Minimum Term balance under 3.9.1 in respect of any termination validly made under clause 3.10.1 or 3.10.2. This clause does not apply where Customer terminates for Brandkit's material breach under clause 3.9.5, which is governed by that clause instead.

3.11.1 The Customer shall supply to Brandkit, or directly upload, all Customer Data (other than Derivative Data) that the Customer wishes to be held in the Facility. Customer Data shall be non-corrupted and substantially clear and free of errors, and Source Files shall be supplied in a Standard File Format.

3.11.2 If the Customer modifies its Customer Data, it shall supply the new versions to Brandkit for upload, or upload them to the Facility directly, in a timely fashion.

3.11.3 The Customer shall bear all costs of creation, redesign and supply of Customer Data.

3.12.1 Maintain the Facility and use its best endeavours to: (i) provide an uninterrupted and error-free service; and (ii) store Customer Data and make it available to Users in the condition supplied by the Customer, without corruption or loss caused by the Facility. This clause does not cover the accuracy of AI Output, which is governed by clause 3.21.4.

3.12.2 Permit Users to access and download Customer Data, 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.

3.13.1 Brandkit acknowledges that the Customer retains sole ownership of all rights in and to the Customer's Intellectual Property.

3.13.2 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, except Customer Data.

3.13.3 Customer shall use its best endeavours to ensure that any Customer Data supplied by the Customer to Brandkit or uploaded directly to the Facility does not infringe the Intellectual Property rights of any third party.

3.13.4 Brandkit warrants that its Intellectual Property does not infringe third-party rights.

3.13.5 Where, for whatever reason, the Intellectual Property or the Facility provided by Brandkit becomes unavailable, Brandkit will use reasonable endeavours to provide the Customer with a replacement Intellectual Property licence or equivalent access, as soon as reasonably practicable. This clause is subject to the limitations on Brandkit's liability set out in clause 3.14.

3.13.6 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) Customer Data supplied to Brandkit or uploaded directly to the Facility, by or on behalf of the Customer.

3.13.7 No Reverse Engineering or Copying - The Customer must not, and must take reasonable steps to ensure that its staff, contractors, agents, Users and Software Agents do not, copy, reproduce, reverse engineer, decompile, disassemble, decrypt, or otherwise attempt to derive or access the source code, underlying ideas, algorithms, structure, or organisation of the Brandkit Platform or any part thereof. The same applies to creating derivative works based on the Brandkit Platform, scraping or systematically extracting data or content from the Brandkit Platform, or using automated tools (including bots, crawlers, or AI agents) to access or replicate the Brandkit Platform's functionality or design, except where expressly permitted under these terms or required by applicable New Zealand law.

3.13.8 API and Agentic Access - Customer may use the Brandkit API, Brandkit MCP, or other authorised programmatic means to allow Users, AI assistants, and chatbots to find, browse, search, preview, share, and download Brand Assets, for use in Customer's own tools, workflows, and third-party AI assistants or chatbots.

Customer must not, and must not permit any User or Software Agent to, use such access to build, operate, or enable any website, application, database, or other product or service that stores, indexes, or organises Brand Assets or their Metadata outside the Facility for the purpose of independently providing search, browsing, downloading, or sharing of those Brand Assets — whether as a standalone product or as part of a broader system such as a CMS or website — without Brandkit's prior written authorisation.

For clarity, this clause does not restrict: (i) Customer's use of AI assistants, chatbots, or other agentic tools to find, browse, preview, share, or download individual Brand Assets in the ordinary course, provided such tools do not persistently store or index the retrieved Brand Assets or Metadata outside the Facility beyond what is reasonably necessary for the immediate request; (ii) Customer's use of Brandkit's embedding or galleries features to display individual Brand Assets or curated galleries of Brand Assets on its own or third-party websites, in the manner intended by those features; or (iii) Customer displaying or embedding individual Brand Assets on its own website or systems once downloaded, provided this does not itself constitute a searchable Brand Asset library replicating the Facility.

3.14.1 No Warranty of Uninterrupted Service - 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.

3.14.2 Brandkit's Liability Cap - Brandkit's total liability to the Customer under or in connection with this Agreement is limited to the total fees paid by the Customer to Brandkit in the 12 months before the event giving rise to the claim.

3.14.3 Indirect Losses - Brandkit is not liable to the Customer for any indirect or consequential loss, or for any loss of profits, revenue, goodwill or business opportunity.

3.14.4 Customer Indemnity - The Customer will indemnify Brandkit against any reasonable losses and costs arising from a third-party claim relating to Customer Data, including a claim that Customer Data infringes a third party's Intellectual Property or privacy rights, or that consent required under clause 3.21.7 was not obtained. Brandkit will promptly tell the Customer about any such claim and allow the Customer to manage its defence.

3.14.5 Customer's Liability - The limits in clauses 3.14.2 and 3.14.3 apply only to Brandkit, and do not apply to any liability that cannot be limited by law. Nothing in this clause 3.14 limits the Customer's liability to Brandkit, including for fees owed, under clause 3.14.4, or for a breach of clause 3.13.7.

3.16.1 First Class Formats: AI, EPS, GIF, JPG, JPEG, PDF, PNG, PSD, TIF, TIFF, WEBP, MP4, MP3, MOV

3.16.2 Second Class Formats: 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

3.16.3 Other formats may be supported. File formats supported may change at any time.

3.17.1 Changes During the Minimum Term - During the Minimum Term, Brandkit will not change the Subscription price or Plan inclusions, except under clause 3.17.3 or by mutual agreement.

3.17.2 Changes After the Minimum Term - After the Minimum Term, or where no Minimum Term is agreed, Brandkit may change the Subscription price or Plan inclusions by giving the Customer one month's written notice.

3.17.3 Annual CPI Adjustment - On each anniversary of the Starting Date, including during the Minimum Term, Brandkit may increase the Subscription by the greater of 2% or the annual change in CPI. Brandkit will give the Customer written notice of any increase.

3.17.4 Customer Plan Changes - During the Minimum Term, the Customer may upgrade to a more expensive Plan at any time, but may not downgrade to a less expensive Plan. After the Minimum Term, or where no Minimum Term is agreed, the Customer may change Plan at any time. Moving to a smaller Plan may affect the ability to store or access existing data, and some features may not be available. The Customer must pay any charges under the previous Plan for any unpaid period before the change.

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

3.19.1 By the Customer - 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.

3.19.2 By Brandkit - Brandkit may assign or transfer this Agreement, in whole or in part, without the Customer's consent, including as part of a sale or restructure of its business. Brandkit may use subcontractors to deliver the Facility and remains responsible for their work.

3.20.1 "Confidential Information" means any non-public information disclosed by one party ("Discloser") to the other ("Recipient") in connection with this Agreement, whether marked confidential or not, including business, financial, technical, and customer information. It does not include information that: (i) is or becomes publicly available through no fault of the Recipient; (ii) the Recipient already lawfully held before disclosure; (iii) is independently developed without use of the Confidential Information; or (iv) is lawfully received from a third party without restriction.

3.20.2 The Recipient will: (i) keep the Confidential Information confidential and not disclose it to any third party, except to employees, contractors, advisors, or AI Providers under clause 3.21.2, who need to know it to perform this Agreement and who are bound by confidentiality obligations at least as strict as this clause; and (ii) use the Confidential Information only to perform its obligations or exercise its rights under this Agreement.

3.20.3 The Recipient may disclose Confidential Information if required by law or court order, provided it gives the Discloser reasonable notice first (where legally permitted) so the Discloser can seek protective measures.

3.20.4 These confidentiality obligations survive termination of this Agreement for 2 years, except for trade secrets, which remain protected for as long as they qualify as trade secrets.

3.21.1 No Training - Brandkit will not use Customer Data, including AI Output, to train or fine-tune any AI model that is shared with other customers or with AI Providers, and will not permit any AI Provider to do so. For clarity, this does not prevent Brandkit from: (i) using AI models, including Brandkit's own proprietary models, to analyse Customer Data and provide AI Features to the Customer, such as generating Search Vectors or recognising objects, faces or landmarks; or (ii) training or fine-tuning a model using the Customer's own Customer Data, where that model is used only for that Customer and is deleted with the Customer Data under clause 3.9.8.

3.21.2 AI Providers - Brandkit may use AI Providers to deliver AI Features. Brandkit will only use AI Providers that are bound by written terms to (i) not train on Customer Data, (ii) keep Customer Data confidential to a standard at least as strict as clause 3.20, and (iii) not keep Customer Data longer than needed to provide the service. A current list of AI Providers and where they process data is available on request.

3.21.3 Ownership of AI Output - AI Output is Derivative Data and forms part of Customer Data. It belongs to the Customer, and the Customer may use it for any purpose. Brandkit retains ownership of the AI Features themselves.

3.21.4 Accuracy - AI Output may be incomplete or wrong. The Customer is responsible for reviewing AI Output before relying on it or publishing it. Brandkit does not warrant the accuracy of AI Output, subject to clause 3.14.

3.21.5 Turning off AI Features - The Customer can turn off AI Features at any time using the AI master switch in the account settings (currently at Admin > Settings > Automation). When AI Features are turned off, all AI processing stops, including the generation of Search Vectors, and features that depend on AI Features, such as automated tagging, descriptions and AI-powered search, will not be available. Existing AI Output, including Search Vectors, is kept when AI Features are turned off. The Customer can choose to delete all previously generated AI Output, including tags, descriptions and Search Vectors, at any time (currently at Admin > Settings > Automation).

3.21.6 Search Vectors - Search Vectors generated from Customer Data are used only to provide the Facility to that Customer. They are not shared with other customers, and are deleted with the Customer Data under clause 3.9.8.

3.21.7 Biometric Features - AI Features that identify individual people, such as face recognition, are turned off by default and are only enabled at the Customer's request. The Customer is responsible for obtaining any consent required by law from people shown in its Customer Data.

3.21.8 Customer's Own AI Providers - The Customer may connect its own account with an AI Provider, for example by adding its own API keys. Where it does: (i) the Customer's agreement with that AI Provider governs how that provider processes Customer Data, and the commitments in clauses 3.21.1 and 3.21.2 do not apply to that provider; (ii) AI Tokens used through that provider are billed directly to the Customer by the provider and do not count toward Usage; and (iii) Brandkit is not responsible for that provider's services.

3.22.1 Personal Information - Customer Data may include personal information, such as the names and email addresses of registered users, and images of people. The Customer controls what personal information is included in Customer Data. Brandkit will only use personal information in Customer Data to provide the Facility to the Customer, and each party will comply with the privacy laws that apply to it.

3.22.2 Security - Brandkit will maintain reasonable technical and organisational security measures to protect Customer Data against unauthorised access, loss or disclosure. Brandkit's information security management system is aligned with ISO/IEC 27001, and details are available on request.

3.22.3 Data Breaches - If Brandkit becomes aware of any unauthorised access to, or loss or disclosure of, Customer Data, Brandkit will notify the Customer without undue delay, take reasonable steps to contain it, and give the Customer the information reasonably available to help it meet its own legal obligations.

3.22.4 Data Location - Customer Data may be stored and processed outside the Customer's country, including by AI Providers under clause 3.21.2. Details of where Customer Data is hosted are available on request.

3.22.5 Data Processing Agreement - Where the law that applies to the Customer requires it, such as the EU or UK General Data Protection Regulation, Brandkit will enter into a data processing agreement with the Customer on request.

3.24.1 Entire Agreement - This Agreement, together with the User License Agreement and Fair Use Policy, is the whole agreement between the parties about its subject matter. It replaces any earlier proposals, discussions or agreements. Any purchase order or other terms supplied by the Customer do not apply, even if signed or accepted by Brandkit.

3.24.2 Changes to this Agreement - Changes to this Agreement must be agreed by both parties in writing. This does not apply where this Agreement allows Brandkit to make a change, such as Plan and price changes under clause 3.17.

3.24.3 Order of Precedence - If there is a conflict between documents, they apply in this order: (i) the Special conditions in section 2; (ii) the rest of section 2 Details and Plan; (iii) these Terms of Service; (iv) the Fair Use Policy; and (v) the User License Agreement. Changes to the Fair Use Policy or User License Agreement cannot reduce the Customer's rights under this Agreement.

3.26.1 Survival - Clauses 3.9, 3.13, 3.14, 3.18, 3.20 and 3.22, and any obligation to pay fees owed, continue to apply after this Agreement ends.

3.26.2 Severability - If any part of this Agreement is found to be invalid or unenforceable, the rest of this Agreement continues to apply.

3.26.3 No Waiver - If a party does not enforce a right under this Agreement straight away, it does not lose that right.