Terms of Trade

Kind Design’s terms of trade are our contract with you. They include our commitment as a service provider and your obligations as a customer.

Last Updated: 04 August 2025

1. Acceptance and scope

1.1 These Terms of Trade (Terms) are between Kind Design Limited (we, us or our) and you, the client (you or your).
1.2 If you accept a quote or proposal (which may be contained in a letter, email or other written form given by us to you describing the services to be performed by us, the deliverables to be provided and the fee) (Proposal), or otherwise engage us to carry out any services or work or provide any deliverables (Services), you accept that these Terms apply to those Services, and to all other services and deliverables we provide you from time to time (except to the extent we agree otherwise in writing).
1.3 Any terms proposed by you that you purport to apply to the supply of the Services that are inconsistent with these Terms do not apply.

2. Proposals

2.1 Proposals are valid for 30 days from the date of the Proposal and must be accepted in writing. We may withdraw a Proposal at any time before you accept it.

3. Services

3.1 We will provide the Services described in the Proposal. If your Proposal specifies a set number of revision rounds, additional revisions will be treated as a variation and additional charges will apply at our standard hourly rate applicable at the time. If your Proposal doesn’t specify a set number of revision rounds, one round is included in the fee.
3.2 You must not use our Services for any illegal purposes. You agree to comply with all applicable laws regarding your use of our Services.
3.3 The start date for the Services will be specified in a Proposal. The completion of the Services will be the date specified in the Proposal, or upon delivery of the deliverables specified in the relevant Proposal.
3.4 If there is a delay or variation to the Services (including the deliverables) because you request to vary the Services, or because you fail to meet your obligations under these Terms, we may amend the fee by written notice to you to reflect any increased costs or additional time we will incur as a result (based on our standard hourly rates at the time).
3.5 Where the deliverables include final design files, these will be in supplied in standard publish-ready formats suitable for print or digital use and will be supplied following receipt of all amounts owing for the Services. Unless specified otherwise in your Proposal, access to working, editable, or source files (or files in other formats) will be subject to additional costs or licensing conditions.
3.6 If we supply print-ready files, we are not responsible for any printing errors, colour variations or issues arising from how the printer uses the files unless the Services specifically include managing print production. You should confirm all specifications with your printer before printing.
3.7 If the Services include web design services, unless stated otherwise in the Proposal, we are not responsible for:
1. arranging and maintaining your website hosting and domain name;
2. any website downtime or domain registration issues;
3. ongoing maintenance or technical support; or
4. updating or maintaining third-party plugins or software after we deliver the website; or
5. website content.
3.8 Websites are designed by us to function on current versions of major browsers at the time of delivery. We do not guarantee compatibility with outdated or unsupported browsers or devices.
3.9 If the Services include branding or logo design, you are responsible for conducting appropriate legal checks, such as trade mark availability searches. We do not provide legal advice or trade mark registration services.
3.10 If the Services include packaging design, then unless stated otherwise in the Proposal:
1. you are responsible for ensuring that all required information (e.g. labelling, barcodes, health and safety warnings) is accurate and complete; and
2. we do not guarantee compliance with industry-specific packaging regulations, retailer requirements or international standards.

4. Your responsibilities

4.1 You agree to:
1. provide all reasonable support and direction to assist us in providing the Services and the relevant deliverables;
2. promptly provide to us all documents, information, samples and materials (whether owned by you or a third party) reasonably required by us to perform the Services, for example, brand guidelines;
3. promptly and clearly respond to all questions, requests for approval, and communications from us;
4. provide us with any third-party assets (such as stock fonts, images, templates, plugins) stated in the Proposal to be provided by you; and
5. obtain any licences, consents or other approvals needed by us to deliver the Services.
4.2 You agree that the accuracy of the information, content, samples and materials supplied to us is your sole responsibility, and we are not responsible for the results of the Services performed on inaccurate or incomplete information provided by you.
4.3 Once we provide the final deliverables to you, you will have fourteen days to notify us of any issues. If we do not receive any notification, the deliverables will be considered accepted as is.
4.4 You are responsible for reviewing and approving all content before publication, production or go-live (as applicable).
4.5 We will retain copies of final deliverables for up to three months after completion of the Services. Following that period, we may, at our discretion, archive or delete the files containing your final deliverables and we have no responsibility for retaining your files after this period. It is your responsibility to safely store and back up all files we deliver to you. If you require us to resend files to you after the three month storage period, an archival retrieval fee may apply (provided the files are still available).

5. Fees and expenses

5.1 The price payable for the Services will be the fee stated in our Proposal accepted by you or, if we haven’t issued a Proposal (or the Proposal is no longer valid), the price will be based on our then current hourly rates. Unless stated otherwise, all amounts stated in Proposals are exclusive of goods and services tax and are in New Zealand dollars.
5.2 Where a Proposal is for a fixed fee, the fee will not vary unless the scope of work changes or additional services are requested by you (any additional services will be quoted separately in a new Proposal.
5.3 You will reimburse us for all out of pocket expenses incurred by us in performing the Services and approved by you in advance, such as third-party assets supplied by us.

6. Payment

6.1 Unless otherwise stated in a Proposal, all fees and pre-approved expenses must be paid as follows (and we will issue invoices on this basis):
1. for our monthly retainer clients receiving ongoing design support services, the monthly fee is due in advance on the first day of each month;
2. for fixed price project-based Services, 50% of the fee is payable on your acceptance of the Proposal, and the remaining 50% is due on completion of the Services (based on the scope of work stated in the Proposal); and
3. where the Proposal states payment is due on certain milestones, on those milestones;
4. in all other cases, all invoices must be paid within seven days of the invoice date.
6.2 We will notify you if you don’t pay any money due under these Terms. If the amount due is still not paid by the 7th day after our notice, we may (in addition to any other rights or remedies) charge you interest at 3% per annum above our bank’s current overdraft rate. Interest will accrue daily on the overdue amount until it is paid. We may claim the costs of recovering any money owed by you (including debt collection and legal costs on a solicitor-client basis).
6.3 You must pay all amounts due by bank transfer to the account number provided by us, without deduction or set-off. No retentions or other withholdings are to be deducted from any payment.

7. Intellectual Property

7.1 Intellectual Property Rights means all intellectual property, proprietary and industrial rights arising in connection with our business or your business (as applicable) (whether existing in statute, at common law or in equity), including:
1. all copyright (including in source code and object code), rights in databases, know-how, trade secrets, methods (including business methods), technical and non-technical information, processes, characteristics, trade marks, trade names, business names, domain names, inventions, patents, design rights, discoveries and formulae;
2. all designs, design details and specifications, concepts, sketches, photographs, working drawings, models and presentation materials;
3. all improvements, enhancements, modifications or adaptations to any of the foregoing rights;
4. all similar and associated rights, whether registered or unregistered, registrable or unregistrable; and
5. all applications to register, and all renewals of, any of the foregoing rights.
7.2 Each party continue to own any Intellectual Property Rights that they owned before the Services commenced or that were developed independently of the Services, together with any enhancements or modifications to such pre-existing Intellectual Property Rights.
7.3 Unless stated otherwise in a Proposal, third-party assets (such as fonts, images, templates, and plugins) included in deliverables are not owned by us and are subject to separate licence terms. You are responsible for obtaining and maintaining all necessary licenses for such third-party assets and ensuring compliance with their terms, unless the Proposal explicitly states that we will arrange these licences.
7.4 All Intellectual Property Rights in the final approved deliverables provided to you resulting from the Services will be owned by you upon full payment of all fees owing to us for the Services. We will continue to own any pre-existing know-how, processes, templates, techniques, ideas, or concepts used to create the deliverables. You grant us a non-exclusive, royalty-free, perpetual right to use the final approved deliverables to provide the Services, to promote our work (including in our portfolio, website or marketing materials) and to enter the deliverables in competitions or awards.
7.5 Despite anything else in these Terms, all Intellectual Property Rights in any draft content, creative concepts, moodboards, prototypes and other deliverables used as part of the creative process or not selected by you to progress to final design will remain owned by us.
7.6 You grant us a non-exclusive, royalty-free licence during the provision of the Services to use and reproduce your Intellectual Property Rights (such as brands and logos) to the extent necessary to provide the Services. You warrant that you own your Intellectual Property Rights, can grant us a licence to use your Intellectual Property Rights and such rights do not infringe on the intellectual property rights of any third party.
7.7 You will reimburse us for any loss, damage, liability, cost (including reasonable legal costs), or expense we suffer in connection with:
1. any breach by you of our Intellectual Property Rights;
2. any claim that any materials, content, or intellectual property provided by you to us infringes a third party's intellectual property rights;
3. our use of your materials, content, or intellectual property under these Terms or claims arising from inaccurate, misleading, or non-compliant content provided or approved by you; and
4. your breach of any licence terms relating to your use of third-party assets.

8. Warranties

8.1 We will perform the Services using the care and skill reasonably expected from a provider of similar services in New Zealand. We will use appropriately qualified and experienced people and comply with all applicable laws.
8.2 We warrant that the deliverables (in the form delivered to you) will not violate any third party’s intellectual property rights, provided that any materials or content provided by you does not infringe any third party’s intellectual property rights.
8.3 Where the Services are being purchased for business purposes, to the maximum extent permitted by the law, all guarantees, warranties, rights, or remedies implied by the Consumer Guarantees Act 1993 and other guarantees, warranties, or provisions that would otherwise be implied by statute or rule of law are expressly excluded. Other than as set out in these Terms or required by law, we do not provide any warranties or guarantees for the Services.

9. Subcontractors

9.1 We may subcontract any part of the Services, and will be responsible for the work of our subcontractors.

10. Liability and disclaimers

10.1 We will use reasonable endeavours to perform the Services and provide the agreed deliverables by the timeframes set out in a Proposal (if any). However, all dates are estimates only and we will not be liable for any loss you suffer due to a delay. If we anticipate being unable to meet such timeframes, we will notify you as soon as reasonably practicable and provide reasons for the delay. Any delays due to unclear or untimely input or feedback from you, third-party delays, or circumstances outside of our reasonable control will result in a corresponding extension to the timeframe and may incur additional fees if they result in additional work.
10.2 We do not guarantee:
1. specific outcomes such as increased sales, brand recognition, engagement, clicks, SEO results or rankings, page speed scores or website uptime unless expressly stated in a Proposal; or
2. that colours shown on screen will match printed colours exactly due to variations in printers, inks, paper types, and screen calibration. You are responsible for conducting test prints before final production (if applicable).
10.3 In providing the Services, we may make recommendations to you. However, you are wholly responsible for your decision to proceed (or not) with such recommendations.
10.4 Our maximum total liability for any losses, claims, costs or damages incurred by you in connection with the Services (however arising) will not exceed the amount of fees actually paid by you for the specific Services giving rise to the liability.
10.5 Neither you nor we are responsible for paying for any loss of profit, sales, savings or other consequential or indirect loss incurred by the other because of these Terms.
10.6 We will not be responsible for failing to meet any obligation in these Terms due to an event or situation beyond our reasonable control (such as a natural disaster, labour strikes, war, terrorism, pandemic, delays caused by subcontractors) which prevents the performance of those obligations. To rely on this, we must notify you promptly and use our best efforts to fix or reduce the effect of the event or situation. If such an event or situation occurs, we may suspend the Services or extend the delivery time for the Services affected by a period equal to the duration of the event or situation.
10.7 If a customer under a Proposal is more than one person, each person is jointly and severally liable to us under these Terms. If a customer under an Order is a partnership or trust, each partner in the partnership or trustee of the trust (as applicable) is jointly and severally liable to us.

11. Suspension and termination

11.1 If you fail to pay any amount due under these Terms by the due date, we may choose not to perform the Services (or provide the deliverables) until payment is received in full and will not be liable for any loss you may incur as a result.
11.2 Where we provide you design support Services on a monthly retainer basis, either party may terminate the Services by providing one months’ written notice to the other party.
11.3 Either party may suspend or terminate a Proposal immediately by giving written notice if the other:
1. fails to comply with a material obligation under these Terms, and if it can be fixed, does not fix that failure within 7 days notice from the other; or
2. can’t pay its debts when due, is bankrupt or liquidated or has an administrator, receiver, liquidator or statutory manager appointed.
11.4 On termination or the completion of Services under a Proposal, if applicable):
1. We will return or destroy all documents, data, and materials containing your Confidential Information that are in our possession unless we are required by law or our professional obligations to retain them.
2. You will, within 7 days of the date of cancellation, pay to us all amounts due and owing (including for any work in progress), for Services provided up to the date of cancellation but not yet invoiced, plus any committed third-party costs that can’t be reasonably avoided.
3. Generally, fixed fee Services must be paid in full, and on termination of the Services we are not obligated to refund any part payment made for fixed fee Services. However, at our sole discretion, based on the circumstances and on the remaining scope of work to be completed, we may provide a partial refund in respect of Services not yet commenced or delivered.
4. We will return any electronic files or materials that contain your Intellectual Property Rights, provided all outstanding fees have been paid.
11.5 Termination doesn’t affect any of each party’s rights or obligations intended to continue, such as under the liability, confidentiality or intellectual property provisions of these Terms.

12. Confidentiality and privacy

12.1 Each party will keep strictly confidential all information relating to each other’s business (including business plans, financial details, customer lists, proprietary technology or processes, marketing strategies, pricing) and any other information obtained from the other party in connection with the Services of a confidential or commercially sensitive nature that is not publicly available, in whatever form (Confidential Information).
12.2 Unless the other party provides prior written consent, a party will not disclose the other party’s Confidential Information to anyone other than its personnel, professional advisors or suppliers who are bound by equivalent confidentiality obligations on a “need to know” basis. We will only use your Confidential Information to provide the Services, except as required by law. You must only use our Confidential Information to receive the Services, except as required by law.
12.3 We will comply with the Privacy Act 2020 and our Privacy Policy regarding any personal information provided to us by or on behalf of you in connection with any Services. Our Privacy Policy (available here), as updated from time to time, is incorporated into these Terms.

13. Disputes resolution

13.1 If any dispute arises, a representative of you and us will first attempt to resolve it, and the obligations in these Terms will continue to apply. If the representatives can’t resolve the dispute within 15 days, either party may refer the dispute to mediation through the Resolution Institute (or its successor) using its mediation rules. The costs of mediation shall be shared equally between the parties.
13.2 This does not stop you or us from seeking a court order for an interim injunction at any time.

14. General legal terms

14.1 We may change these Terms by notifying you of the updated terms, and they will take effect for all new Proposals from the date of such notification.
14.2 All notices and communications must be emailed to the email addresses set out in the most recent Proposal. An emailed notice will be considered received when the email is sent (during business hours on business days in the place of receipt).
14.3 Neither party can assign or transfer any rights or obligations under these Terms without the other party’s prior written approval.
14.4 These Terms and the Proposal set out the entire agreement and understanding between the parties relating to the subject matter and replace any earlier discussions and agreements (oral or written).
14.5 These Terms will be governed by New Zealand law, and the parties submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising from these Terms. Although our Services may be accessed from countries outside New Zealand, we cannot guarantee that our Services or any deliverables we provide comply with the laws in any country other than New Zealand.
14.6 All capitalised words in these Terms have the meaning stated in bold in these Terms.
14.7 If there is any inconsistency between these Terms and any Proposal, the Proposal will take priority.