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GENERAL

These Terms and Conditions shall apply to the provision of all of The Brand Merchant services.

INTERPRETATION

In these Terms and Conditions and in any Contract to which these terms and conditions apply unless the context otherwise requires:

1. The Brand Merchant means The Brand Merchant Ltd;

2. Conditions mean these Terms and Conditions to be read and construed with each Estimate/Quotation provided by The Brand Merchant;

3. Client or Customer means the purchaser of products and/or services from The Brand Merchant. If the Client(s) comprises more than one person, each of those person’s liability and agreement is joint and several.

4. Where the Client is a trust, the trustee's liability shall not be limited to the assets of the trust;
   Contract means an agreement between the Client and The Brand Merchant comprising of the

5. Estimate/Quotation and the Conditions and any variation agreed to in writing by The Brand Merchant;
   Products and services mean the products sold by The Brand Merchant to the client;

6. Unless Mint Design and the Client otherwise agree in writing:

   1. In the event of any conflict arising between these Conditions and any agreement or contract these Terms and Conditions shall prevail; and

   2. Estimates/Quotations by The Brand Merchant remain open for acceptance for 28 days from the date of the Estimate or Quotation.

CONTRACT FORMATION

No contract shall come into existence until the Client’s order has been accepted by The Brand Merchant. The Client may place an order by either:

1. Accepting the Estimate or Quotation, Via hnry, by email, in person or in writing; or

2. Paying the deposit (if any) referred to in the Estimate or Quotation; or
   Communicating its order to The Brand Merchant in a manner otherwise than in accordance with (a) above. The

3. Client cannot cancel a contract after an order has been accepted by The Brand Merchant and is bound to pay the estimated or quoted price.

PAYMENT

1. Unless otherwise agreed in writing, prices are estimated and quoted in New Zealand Currency and shall be exclusive of GST.

2. Mint Design will invoice the Client upon completion of the work unless the work is ongoing (past the end of any month) in which case The Brand Merchant will invoice the Client on a monthly time-taken basis. Unless otherwise agreed in writing, invoices are payable within fourteen (14) days of the date of that invoice.

3. Unless otherwise agreed in writing, payment of the products and services shall be made within fourteen (14) days following the date of invoice. The Brand Merchant reserves the right to require the Client to pay for Products and/or Services prior to their supply.

4. If the Client does not pay their account by the due date and has not entered into any payment arrangement (which is at The Brand Merchant's sole discretion), The Brand Merchant reserves the right to stop working for the Client immediately and will not be liable to the Client for any loss that they may suffer as a result of such discontinuance.

5. The Brand Merchant reserves the right to correct any typographical or clerical errors contained in the prices or specifications.

6. Time for payment is of the essence and, without prejudice to any other rights of The Brand Merchant, if the Client fails to pay any sum payable pursuant to any Contract when due:

   1. The Brand Merchant may treat the Contract as repudiated by the Customer or may until payment in full is made, suspend delivery of products without incurring any liability whatsoever to The Brand Merchant;

   2. The Client shall (if so required by The Brand Merchant) pay interest to The Brand Merchant at the default interest rate of fourteen percent (14%) per annum. Interest shall be payable daily until the date when the payment is received; and

   3. The Client shall be liable for all the expenses and costs (including indemnity legal costs) in relation to Mint Design enforcing or attempting to enforce a Contract or these Terms and Conditions.

DEFAULT

In the event that:

1. The amounts payable by the Client to The Brand Merchant are overdue, or the Client fails to meet any other obligation to The Brand Merchant, under this or any other Contract or agreement or in The Brand Merchant's opinion the

2. Client is likely to be unable to meet any payment or other obligations to The Brand Merchant; or
   The Client becomes insolvent, has a receiver appointed in respect of all or some of its assets, makes or is likely to make an arrangement with its creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory or official management; or

3. The Client no longer carries on business or threatens to cease carrying on business; or

4. The ownership or effective control of the Client is transferred or the nature of the Client’s business is materially altered; then

The Brand Merchant shall be entitled to cancel all or any part of any Contract with the Client which remains unperformed, in addition to and without prejudice to its other remedies; and all amounts outstanding under this Contract or any other

INTELLECTUAL PROPERTY

1. Unless otherwise agreed, The Brand Merchant shall retain copyright and intellectual property rights in all documents, reports, records, media, electronic files, drawings and designs prepared for and on the Client’s behalf.

2. The Client will be entitled to use the documents and any copies for the purposes for which they were intended however, unless otherwise agreed, the Client (or any other person or entity) is not permitted to make use of, or modify, any such document for any other purpose without The Brand Merchants agreement in writing. Concepts not chosen will remain the property of The Brand Merchant.

3. On completion and full payment of branding projects, the intellectual property rights of the Client’s logo design will transfer to the Client.

4. Where The Brand Merchant provides access to design files, access will be provided in PDF, JPG or PNG format.

5. Access to design files in other formats may incur additional costs for the Client.

6.  Trademarking is the sole responsibility of the Client.

LIMITATION OF LIABILITY

1. The Client agrees that The Brand Merchant will not be liable for any indirect or consequential damages, including but not limited to, loss of profits or for any claim made on the Client by any other party, even though The Brand Merchant may have been notified of such damage or claims.
   In particular, The Brand Merchant shall not be liable for any loss or damages arising, either directly or indirectly, from search engine rankings or social media marketing, including but not limited to any losses resulting from changes in search engine rankings, the closure of social media accounts and non-compliance with social media provider guidelines.

2. The Brand Merchant shall not be liable to the Client for any loss or damage directly or indirectly arising out of or in connection with any delay in delivery of the goods or failure to perform its obligations to the Client where such delay or failure is caused directly or indirectly by the Client (for example, by changing its requirements, not providing timely feedback or approval of proofs) or by an act of God, armed conflict, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials or manufacturing facilities, accidents, interruptions of, or delay in, transportation, weather conditions or any other cause beyond The Brand Merchant's control.

3. The Client agrees to defend, indemnify and hold The Brand Merchant harmless from and against any and all claims, losses, liabilities and expenses (including legal costs) related to or arising out of the services provided by The Brand Merchant to the Client, including without limitation claims made by third parties (including the Client’s customers) related to any false advertising claims, liability claims for products or services sold by the Client, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided by The Brand Merchant, or for any content submitted by the Client for publication by The Brand Merchant. 

4. If, despite the above, The Brand Merchant is found to be liable to the Client, then its liability for any single event or series of related events is limited to the fees paid by the Client to The Brand Merchant for those particular services.

5. Due to the public nature of the Internet, all material submitted by the Client for publication will be considered publicly accessible. Mint Design does not screen in advance any Client material submitted to The Brand Merchant for publication. Mint Design’s publication of material submitted by the Client does not create any express or implied approval by Mint Design of such material.

WEBSITES

1. Where The Brand Merchant has created or designed a website for the Client, the Client must make payment in full prior to the website ‘going live’ on the internet. Should payment not be made in full, The Brand Merchant reserves the right to shut down that website until such time as it receives payment in full. In the event that the website is already live, The Brand Merchant reserves the right to take the website down from the internet until such time as it receives payment in full.

2. The Client acknowledges and agrees that it will be liable for all of the costs restoring the website to the internet where it has been shut down due to non-payment.

3. The Client agrees that it will be charged for any work it requests The Brand Merchant to complete or undertake that is outside of the scope of the estimate/ quote and the approved design. After going live, updates or changes the Client wishes to make to the website will also be chargeable.

4. Packaging and supplying website files for transfer or taking a website down will incur a cost and will be payable by the Client.

5. Where The Brand Merchant has created or designed a website for the Client, the website will have a 30-day warranty.

   1. This warranty period will start from the date on which the website is published to the live domain and is accessible online.

   2. This warranty covers any coding, design or content issues that may arise after the website has gone live, provided that the issue/s had not been discovered or approved by the Client during the acceptance period.

   3. Any changes the Client wishes to make to the website after the warranty period will be chargeable.

   4. This warranty does not cover any third-party apps or services that are installed or implemented by the Client or any other person acting on the Client's behalf after the website has been accepted.

   5. This warranty does not cover any third-party apps, systems or APIs that are outside of The Brand Merchant's control.

   6. If the Client chooses to delay the go-live date, the warranty period will be the earlier of 30 days from “go live” or 60 days after the date on which the website is accepted.  The website will be considered accepted once the Client has approved the site, prior to the website ‘going live’ on the internet.

PROOFING

Proofs of all work may be submitted for Clients approval and The Brand Merchant shall incur no liability for any errors not corrected by the Client in proofs submitted. Additional charges shall be made for any additional proofs that are required as a result of alterations required by the Client.

MISCELLANEOUS

1. If any Condition or part of any Condition is held to be invalid or unenforceable the invalidity or unenforceability shall be deemed eliminated or modified to the minimum possible extent necessary to make the remainder of the Conditions enforceable.

2. Failure by The Brand Merchant to insist upon strict performance by the Client of any of the Conditions shall not be a waiver of any rights of The Brand Merchant on any subsequent occasion.

3. These Terms and Conditions and the Contract may only be varied by The Brand Merchant in writing at its discretion.

4. The Client may not assign or transfer any of its rights or obligations under or in connection with the Contract to any other person whatsoever.

5. The Brand Merchant reserves the right to sub-contract the performance of the Contract or any part of the Contract to any other party or person.

6. Neither party shall be liable for any delay, alteration or failure to perform any of its obligations under a Contract where occasioned by an event beyond that party’s reasonable control (“force majeure”) and such party shall be entitled to a reasonable extension of time for the performance of any such obligations.

7. The Client shall pay the costs and expenses including indemnity legal costs incurred by The Brand Merchant in exercising any of its rights or remedies or enforcing any of the Conditions. All Contracts made between The Brand Merchant and the Client shall be governed by and construed in accordance with the laws of New Zealand and the Client agrees to submit to the nonexclusive jurisdiction of the New Zealand Courts.

8. Any notice given by one party to the other shall be deemed to have been delivered 48 hours after posting to the recipients registered office or last known address and immediately if forwarded by facsimile or email. Packaging and supplying files will incur a cost and will be payable by the Client in advance of files being supplied.

COLLECTION AND DISCLOSURE OF INFORMATION

The Brand Merchant may at any time collect, hold and use information relating to a Client for any purpose connected with its business including (but not limited to) direct marketing, debt recovery, credit reporting or assessment, and to register any security interest, including collecting information from, and disclosing information to, Related Companies, external credit reporting agencies, debt collection agencies, trade referees and other third parties. Information disclosed by The Brand Merchant to credit reporting agencies will be disclosed on the basis that it will be held and used by such agencies to provide credit reporting services. Under the Privacy Act 1993 (and any amendments thereto), individuals have rights to access to, and request correction of, their personal information by contacting The Brand Merchant.

The Client, any director signing on behalf of the Client and any Guarantor authorises The Brand Merchant to collect, hold and use information from any person or entity for any of the above purposes, and for such person or entity to disclose information to Mint Design, and the Client further authorises Mint Design to disclose information to any person or entity for any of the above purposes and such person or entity to collect, hold and use information from Mint Design.

LAW

These Terms and Conditions shall be governed by the laws of New Zealand and shall be construed in all respects as a New Zealand contract.