KELLY WATTS (KULTIVATE)
Standard Terms & Conditions
I'M SO GLAD YOU'RE HERE!
Thank you for choosing Kultivate to help bring your brand to life. I value clarity, collaboration and creativity, and the following terms are here to set the foundation for a smooth and empowering experience for us both.
These Terms and Conditions (called Terms below) apply to all services, service packages, materials, products or deliverables (Services) provided by Kelly Watts (Kultivate) (called we, us or our below) to any person or entity who accepts a proposal for services from us, purchases a services package on our website, or otherwise receives services or deliverables from us (called you or your below) unless we have entered into a written agreement which conflicts. Please read these Terms carefully.
1. Services
We will provide the Services described in the service package you select on our website (Service Package), or in a written proposal issued by us (either as a formal written document or an email) (Proposal). If your Service Package or Proposal specifies a set number of revision rounds, additional revisions will be treated as a variation and additional charges will apply.
Where we provide a Proposal, we will only provide the Service once the Proposal is accepted in writing. If not accepted within 30 days, the Proposal will lapse.
We may modify or discontinue any Service or feature at any time, provided this doesn’t adversely affect your current Services (until after completion of those Services) or any Proposal that remains open for acceptance.
You must not use our Services for any illegal purposes. You agree to comply with all applicable laws regarding your use of our Services.
2. Your Responsibilities
You agree to:
provide all reasonable support and direction to assist us in providing the Services and the relevant deliverables;
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;
promptly and clearly respond to all questions, requests for approval, and communications from us;
provide us with any third-party assets (such as stock fonts, images, templates, plugins) stated in the Service Package or Proposal to be provided by you; and
obtain any permits, licences, consents or other approvals we need to deliver the Services.
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.
Once we provide the final deliverables to you, you will have 14 days to notify us of any issues. If we do not receive any notification, the deliverables will be considered accepted as is.
You are responsible for reviewing and approving all content before publication, production or go-live (as applicable).
3. Fees & Expenses
You will pay the fee for the Service stated on our website or as agreed in a Proposal (as applicable).
Some Proposals may contain a fee estimate for the Services. This is based on the information provided by you and our assessment of the work involved. The quote is not fixed, and the final fee payable by you may vary from the estimate.
Where Services are displayed with or stated to have 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).
All fees we display on our website (or in a Proposal) are in New Zealand dollars are GST exclusive unless otherwise stated. You must pay goods and services tax in addition to the fee unless we agree otherwise.
4. Payment Terms
All fees (and any expenses incurred by us and approved in advance by you) must be paid by you at the time and in the manner stated on our website for the relevant Service Package, or as agreed in a Proposal. We will invoice you accordingly. Unless otherwise stated in a Proposal, invoices are payable within 7 days from the invoice delivery date.
All fees (and expenses) must be paid in New Zealand dollars, in cleared funds, into the bank account specified in writing by us and free of any restriction, set-off, deduction or withholding (except as required by law).
You may be directed to our payment provider’s website to complete payment. Their terms and conditions will also apply, and additional fees may apply for payment by credit card.
If you are required to register an account to purchase the Services, you must keep your account password secure, not let anyone else use your account, and notify us of any unauthorised use of your account.
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.
If you don’t pay any money due under these Terms by the due date, we will notify you in writing. If any amount remains unpaid 7 days after we give you notice, we may charge interest on the overdue amount at 5% per annum above our bank’s then-current commercial overdraft base rate, calculated daily from the due date until paid in full. You will reimburse us for all debt collection, legal and other costs we incur in recovering any amount overdue.
5. Intellectual Property & Licensing
In this section, 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:
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;
all designs, design details and specifications, concepts, sketches, photographs, working drawings, models and presentation materials;
all improvements, enhancements, modifications or adaptations to any of the foregoing rights;
all allied, similar and associated rights, whether registered or unregistered, registrable or unregistrable; and
all applications to register, and all renewals of, any of the foregoing rights.
Each party will continue to own any Intellectual Property Rights they owned before the Services to you commenced or that were developed independently of the Services, together with any enhancements or modifications to such pre-existing Intellectual Property Rights.
Unless stated otherwise, third-party assets (including but not limited to 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 Service Package or Proposal explicitly states that we will arrange these licences. We are not liable for any claims arising from your use of third-party assets outside the scope of their applicable licences.
All Intellectual Property Rights in the deliverables we provide to you resulting from the Services will be owned by you upon full payment of all fees owing to us. We will continue to own any existing know-how, processes, templates, techniques, ideas, or concepts used to create the deliverables resulting from the Services. You grant us a non-exclusive, royalty-free, perpetual right to use such 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.
Despite anything else in these Terms, all Intellectual Property Rights in any drafts, content or creative concepts not selected by you to progress to final design will remain owned by us. Under these Terms, you will only receive Intellectual Property Rights in the final deliverables.
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.
You will reimburse us for any loss, damage, liability, cost (including reasonable legal costs), or expense we suffer in connection with:
any breach by you of our Intellectual Property Rights;
any claim that any materials, content, or intellectual property provided by you to us infringes a third party's intellectual property rights;
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
your breach of any licence terms relating to your use of third-party assets.
6. Warranties & Disclaimers
In performing the Services, we will:
use the care and skill reasonably expected from a provider of similar services in New Zealand; and
use appropriately qualified and experienced people and comply with all applicable laws.
We will use reasonable endeavours to perform the Services and provide the resulting deliverables to meet the timeframes set out on our website for the relevant Service Package or as agreed in a Proposal. However, all dates are estimates only. 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 our reasonable control will result in a corresponding extension to the timeframe and may incur additional charges if they result in additional work.
We warrant to you 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 to us do not infringe any third party’s intellectual property rights.
We will not be liable for any loss, damage or cost incurred by you which results from: any variation, delay, or direction given or caused by you; any circumstances beyond our reasonable control (such as acts of God or delays in subcontractors); or any change in the use of the Services from what was contemplated in the Proposal (if applicable).
We do not guarantee specific outcomes such as increased sales, brand recognition, engagement, clicks, SEO results, or website uptime unless expressly stated.
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.
Other than as expressly stated in these Terms or a Proposal, we exclude all warranties, conditions or obligations to the greatest extent permitted by law.
You agree that the Services are being purchased for business purposes and therefore the Consumer Guarantees Act 1993 does not apply.
Where our deliverables include final design files, these will be in EPS, SVG, PDF, JPG or PNG format. Access to editable or source files or files in other formats may incur additional costs unless specifically included in your selected Service Package or Proposal.
7. Cancellation & Suspension
If you fail to pay any amount 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.
A Proposal will end on the date specified in the Proposal or upon delivery of the deliverables specified in the relevant Proposal. A Service Package will end on the date specified on our website, or upon delivery of the deliverables specified for the relevant Service Package (as applicable). Each party may cancel a Proposal or Service Package by providing 30 days' written notice (which may be by email).
Either party may cancel a Proposal or Service Package immediately by giving emailed notice to the other party if the other party:
fails to comply with an important obligation in these Terms, and if it can be remedied, does not remedy that failure within 7 days of receiving written notice from the other party; or
becomes insolvent, bankrupt, is liquidated, is placed in voluntary administration or has a receiver appointed in any part of its business.
On cancellation or the end of these Terms (and all Proposals, if applicable):
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;
You will, within 7 days of the date of cancellation or expiry, 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;
We will refund a fair portion of the fee for Services not yet completed; and
We will return any electronic files or materials that contain your Intellectual Property Rights, provided all outstanding fees have been paid.
Cancellation doesn’t affect either party's rights or obligations intended to continue, including but not limited to confidentiality obligations, intellectual property rights, indemnities and limitations of liability.
8. Confidentiality & Privacy
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). Unless you provide prior written consent, we will not disclose your Confidential Information to anyone other than our 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. Unless we give prior written consent, you must not disclose our Confidential Information to anyone other than your personnel, professional advisors or suppliers who are bound by equivalent confidentiality obligations on a “need to know” basis. You must only use our Confidential Information to receive the Services, except as required by law.
We will comply with the Privacy Act 2020 regarding any personal information provided to us by or on behalf of you in connection with any Services.
9. Dispute Resolution
If any dispute arises, we will first attempt to resolve it amicably with you, and the obligations in these Terms will continue to apply. If the dispute is unresolved within 14 days, either party may refer it to mediation through the Resolution Institute (or its successor) using its mediation rules. The costs of mediation shall be shared equally between the parties. This does not stop either party from seeking a court order for an interim injunction to prevent non-compliance or require compliance at any time.
10. Limitation of Liability
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.
We are not responsible for any loss of profit, revenue, business opportunity, data, goodwill, savings or other consequential, special, indirect, exemplary or punitive loss or damage incurred by you in connection with the Services.
11. General Legal Terms
We may change these Terms at any time by posting the new Terms on our website. Any change to the Terms will take effect from the date the new Terms are posted, except existing Service Packages or Proposals, which will continue under the existing Terms until the Services are completed or cancelled.
The Services are only available to you and cannot be transferred to or shared with anyone else without our prior written consent.
We may assign, transfer or subcontract any of our rights or obligations under these Terms and any Proposal without your prior consent.
If you comprise more than one person, each of those persons’ liability and agreement is joint and several.
The laws of New Zealand govern these Terms. 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.
12. Website Design Services
If your Service Package or Proposal includes website design services, the following additional terms apply unless stated otherwise:
We are not responsible for:
arranging and maintaining your website hosting and domain name
any website downtime or domain registration issues
ongoing maintenance or technical support
updating or maintaining third-party plugins or software after we deliver the website
Your website will be designed 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.
We do not guarantee specific SEO rankings or page speed scores.
You are responsible for supplying all website content (such as text, videos, images).
13. Branding & Logo Design Services
If your Service Package or Proposal includes branding or logo design services, the following additional terms apply unless stated otherwise:
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.
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A Waikato design studio supporting mums and families in business with their branding, websites and social content design.
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