Terms of Service
Agreement between Brandkit and Brandkit Customers.
Agreement - The agreement is between E-see, and Customer who will supply to E-see to be held on the Facility,
and E-see will hold on the Facility, the Customer’s Brand Assets (if any), on the terms and conditions set out in this
Terms of Service document.
- Definitions – Certain terms are defined in this agreement.
- Brandkit means - the name of a digital asset management software as a service operated by E-see.
- E-see means E-see International Ltd, a New Zealand registered company, the provider and owner of the Brandkit service.
- Customer means - an organization or person that contracts with, opens an account on Brandkit for the purposes of using the Facility to upload and distribute Brand Assets to Users.
- Platform means the Brandkit's software, servers, databases, storage facilities and generated customer websites and web pages.
- Facility means - the Brandkit Platform, an online software application and storage facility, delivered
as a service, which the Customer's website runs on.
- User means - any person whether authorized or unauthorized that uses the Facility.
- Seat means - any User who is an employee of the Customer, or Agent (other than an employee of E-see), or who can contribute, upload, edit, tag, manage assets, posts or users, or can view reports or administer the Facility, for or on behalf of the customer, or is an employee of the customer who can login via single sign-on when that single sign-on is limited to Customer employees only.
- Subscriber means - any User who is registered on the Facility for the purposes of downloading or requesting only (excluding Seat Users).
- Guest means - any User that is not registered on, or logged in to, 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.
- Source File means - any individual Brand Asset file supplied by the Customer to E-see, for upload to the Facility, or that is uploaded by the Customer to the Facility.
- Metadata means - the information that describes the Brand Asset such as Asset Name, Description, Tags, etc
- Customer Data - means the Source Files and Metadata, supplied to E-see by the Customer, for upload to, or that is uploaded directly to the Facility.
- 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 15.
- Intellectual Property includes - any trademarks, trade names, copyrights, patents, ideas, know-how, techniques, skills, inventions or improvements.
- MFC means - monthly facility charge.
- AFC means - annual facility charge.
- Variant means - version of a Brand Asset. For example, CMYK colour, SPOT colour, Black & White, etc.
- Plan means - a bundled combination of price, capacity, options and features.
- Fair Use Policy means - the Fair Use Policy available at https://www.brandkit.io/pages/fair-use-policy.
- Usage means - the combined storage and traffic (downloads, views and requests), used in any given period, measured in gigabytes or terabytes.
- Purpose - The purpose of the Facility is for the Customer to store their Brand Assets in order to access and permit other Facility Users to access.
- Facility Charge (MFC or AFC) - A Monthly Facility Charge will be charged at the beginning of each calendar month, or an Annual Facility Charge will be charged upon establishment and on each anniversary of that date, at the rates detailed in the Agreement, until this Agreement is terminated in accordance with clause 8 and 9.
- Setup Charges - Set-up charges will be levied for any work carried out to prepare, upload, update and/or publish Customer’s files or data to the facility, at the rates detailed in the Agreement.
- User Downloads - User Downloads of files will be free of charge and unlimited, but subject to any agreed traffic charges.
- GST/Tax – All fees and charges are quoted exclusive of GST and any government taxes.
- Payment - Payments are due on the day specified in the Agreement by way by direct credit to the bank account of E-see or by cheque delivered to the offices of E-see.
- Term – This agreement is for a minimum period of the Term from the Starting Date, as detailed in the Agreement. At expiry of the Term, this agreement will continue to roll over month by month until a new agreement is made or until either party formally terminates as per clause 9.
- 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;
- If Customer terminates and the effective termination date is prior to the end of the Term, the Customer will pay the balance of the remaining Term calculated as; the number of months remaining, multiplied by the average monthly charge made during the Term.
- Upon termination the Customer shall pay to E-see 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 authorized users, for any charges due in the event of termination by the Customer.
- If Customer terminates, it is the Customer's responsibility to ensure all the Customers Data (including Source Files), is downloaded prior to termination, and E-see shall not be liable for any costs in relation to recovery or recreation of any Customer data after termination.
- If Customer terminates, E-see will optionally provide a Data Download Service service to the Customer for a mutually agreed fee, whereby E-see downloads all the Customers Source Files and delivers these to the Customer.
- If E-see terminates, it is E-see’s responsibility to ensure all the Customers Source Files are downloaded and supplied on suitable media, to the Customer, prior to termination, and E-see 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.
- Upon termination and after settlement of of all amounts due, E-see shall permanently delete from the Facility all of the Customer Data from the Facility.
- 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, E-see will provide the Customer with alternative access to the Customers Source Files, promptly and free of charge.
- Supply of Brand Assets
- The Customer shall supply to E-see, or directly upload, all Source Files the Customer wishes to be held in the Facility. The Source Files shall be non-corrupted and substantially clear and free of errors, and supplied in a Standard File Format.
- If the Customer modifies its Brand Assets, it shall supply the new versions of the Source Files to E-see for upload or upload to the Facility directly, and update the associated Metadata in the Facility, in a timely fashion.
- The Customer shall bear all costs of creation, redesign and supply of Brand Assets and Customer Data.
- E-see rights and obligations - E-see shall:
- Maintain the Facility and use its best endeavours to ensure an uninterrupted and error-free service; and ensure the Brand Assets and Customer Data are substantially clear, free of errors and usable by end users for the purpose of commercial reproduction to an acceptable standard.
- Intellectual Property -
- E-see acknowledges that the Customer retains sole ownership of all rights in and to the Customer’s Intellectual Property.
- The Customer acknowledges that E-see retains sole ownership of all rights in and to Intellectual Property, created or developed in connection with the Facility.
- The Customer shall use its best endeavours to ensure that any Brand Assets or Customer Data supplied by the Customer to E-see or uploaded directly to the Facility do not infringe the Intellectual Property rights of any third party.
- E-see warrants to the best of its knowledge that:
- Any Intellectual Property rights provided to the Customer by E-see do not infringe the industrial or Intellectual Property rights of any third party or person; or
- Where third party Intellectual Property rights are used to fulfil the services then E-see has been granted a licence to use such Intellectual Property rights.
- Where, for whatever reason, the Intellectual Property or the Facility provided by E-see is no longer available, E-see will be responsible for ensuring uninterrupted access for the Customer to the Facility by way of replacement Intellectual Property licence.
- E-see 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 E-see; (b) the modification of the Facility by any party other than E-see; or (c) Brand Assets or Customer Data supplied to E-see or uploaded directly to the Facility, by or on behalf of the Customer.
- E-see’s Liability -
- The Customer acknowledges that E-see 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 Brand Assets.
- E-see shall not be liable to the Customer for, and the Customer releases and discharges E-see from any and all claims and demands in respect of, any loss or damage arising directly or indirectly in connection with this Agreement, the Facility or the use of the Customer's Brand Assets or Customer Data held on the Facility except to the extent to which it is unlawful to exclude such liability.
- If the clause 13.2 exclusion of liability is held to be invalid for any reason, E-see’s liability for any such loss or damage shall be limited to the Customer's average fee for 1 month based on usage over the previous six months.
- Consumer Guarantees Act Excluded - The Customer acknowledges and agrees that all services it acquires from E-see are acquired for the purpose of a business and accordingly the Consumer Guarantees Act 1993 does not apply.
- Standard File Formats - Source Files to be held on the Facility shall be supplied by the Customer in the following
- First Class Formats: AI, EPS, GIF, JPG, JPEG, PDF, PNG, PSD, TIF, TIFF,
- Second Class Formats: AVI, BMP, CDR, DCR, DOC, FHD, FH9, FH5, FH8, FLA, INDD, KEY, MOV, MP3, MP4, 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.
- Plans -
- Changes by E-see - E-see reserves the right to and may adjust the Facility’s standard Plans at anytime without notice.
- Where a fixed Term is agreed, E-see agrees not to alter the agreed Plan, except by mutual agreement and one month's written notice.
- Where no fixed Term is agreed, Customer may change Plans at anytime, 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. Customer also acknowledges that it must pay any charges applicable to the previous Plan for any unpaid period prior to the Plan change.
- Where a fixed Term is agreed, Customer may upgrade to a more expensive plan, but may not downgrade to a less expensive plan, during the fixed Term period.
- Customer acknowledges that this agreement is subject to the Fair Use Policy.
- New Zealand Law Applies - E-see is located in New Zealand and all services we provide are provided in New Zealand under New Zealand law. You may take action against E-see only in a New Zealand court. This applies whether you are using the Facility from inside or outside New Zealand.
- 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 E-see, which will not be unreasonably withheld by E-see.
Last updated 22 January 2022