Terms & Conditions

THIS TERMS OF USE AGREEMENT (the “Agreement”) constitutes a legally binding agreement by and between Stephanie Holt trading as Rubyfive Design and the Client, whether personally or on behalf of an entity (“Client”), with regard to access and use of Rubyfive Design’s website: www.rubyfivedesign.co.nz (the “Website”) and any other media form, channel, mobile website or mobile application related, linked or otherwise connected thereto. Failure to agree and adhere to all of the terms, conditions and obligations contained herein results in the express prohibition of the Client’s use of the Website, and the Client is ordered to discontinue use immediately. Thereafter the relationship between Client and Rubyfive Design shall cease and be of no further force and effect between the parties, except that any obligation of Client to pay Rubyfive Design for services rendered shall remain and continue to be an ongoing obligation owed by Client to Rubyfive Design.

 

1. Intellectual Property Rights

Unless otherwise indicated, the Website is the property of Rubyfive Design and all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics of any nature and regardless of format (herein, collectively or individually, the “Content”) and the trademarks, service marks, and logos contained there (the “Marks”) are owned and controlled by Rubyfive Design and are protected by copyright laws and any other applicable intellectual property law or regulation of New Zealand. The Content and Marks are provided “As-Is” for your information and personal use only. Except as expressly provided herein, no part of the Website and no Content may be copied, reproduced, aggregated, republished, uploaded, posted, displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without Rubyfive Design’s express prior written permission. Rubyfive Design reserves all rights in the Website, Content and Marks.

 

Rubyfive Design retains exclusive copyright to all concepts and work created by it until the Client pays all invoices in full relating to the Proposal.  Any conceptual work developed by Rubyfive Design and submitted to the Client for consideration, but not incorporated into the final design, remain the exclusive property of Rubyfive Design.  To present and market examples of its work, including on its website, Rubyfive Design reserves the right to publish or display any element of any project to which Rubyfive Design contributed.

 

2. Ownership of Materials

Notwithstanding Rubyfive Design’s ownership of Submissions, as described in Paragraph 4 (“Client Feedback”), all final designs and original source files created on Client’s behalf (“Projects”) belong to Client, and Client shall be the sole owner of the copyright for all Projects once Client has accepted and approved the final design or deliverables as full and final. Any conceptual work developed by Rubyfive Design and submitted to the Client for consideration, but not incorporated into the final design or deliverables, remain the exclusive property of Rubyfive Design. 

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Client warrants that any and all materials provided to Rubyfive Design as examples or as material to be incorporated into a project during the design process are owned by Client and do not infringe on or misappropriate any third party’s rights, including, but not limited to, all intellectual property rights and any right of publicity.

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Rubyfive Design warrants to the Client that to the best of its knowledge, the Deliverables do not violate the rights of any third party.

Rubyfive Design always reserves the right to share the Client's design work publicly (social media, website, etc.) unless agreed upon as stated in section 18 of this document.

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3. Third-Party Fonts

In the event that any Project incorporates fonts that are not owned by Rubyfive Design and require a commercial license in order for Client to legally reproduce, distribute, or publicly display the Project (“Third-Party Font(s)”), Rubyfive Design will inform Client in writing that one or more Third-Party Fonts have been incorporated into the Project and that Client will need to purchase one or more licenses for the Third-Party Fonts from the rights-holder(s) of said Third Party Fonts in order to legally reproduce, distribute, or publicly display the Project. Said notice will include information sufficient for Client to identify which licenses are required and who to contact in order to purchase said licenses. So long as Rubyfive Design has informed Client of the incorporation of Third-Party Fonts as described above, Client assumes all responsibility for any consequences as a result of a failure by Client to purchase one or more licenses for any Third-Party Fonts incorporated into a Project.

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4. User Representations

By using the Website, Client represents and warrants that:

• Client has the legal capacity and agrees to comply with these Terms of Use;

• Client is not a minor;

• Client will not access the Website through automated or non-human means;

• Client will not use the Website for any illegal or unauthorised purpose;

• Client’s use of the Website will not violate any applicable law or regulation.

 

5. Prohibited Activities

Client shall not access or use the Website for any purpose other than that for which the Website is made available to the Client. The Website may not be used in connection with any commercial endeavours except those related to the work performed by Rubyfive Design on behalf of the Client. Further, the Client agrees to refrain from the following:

• Make any unauthorised use of the Website;

• Retrieve data or content for the purposes of creating or compiling a database or directory;

• Circumvent, disable, or otherwise interfere with security-related features on the Website;

• Engage in unauthorised framing or linking of the Website;

• Trick, defraud or mislead Rubyfive Design or other users;

• Interfere with, disrupt or create an undue burden on the Website or Rubyfive Design’s networks or servers;

• Use the Website in an effort to compete with Rubyfive Design;

• Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Website;

• Bypass any measures on the Website designed to prevent or restrict access to the Website or any portion thereof;

• Harass, annoy, intimidate or threaten any of Rubyfive Design’s employees, independent contractors or agents providing services through the Website;

• Delete the copyright or other rights notice from any Content;

• Copy or adapt the Website’s software. Upload or transmit, or attempt to do so, viruses, Trojan horses, or other material including anything that interferes with any party’s use of the Website or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operations or maintenance of the Website;

• Upload or transmit, or attempt to do so, any material that acts as a passive or active information collection or transmission mechanism;

• Disparage, tarnish or otherwise harm Rubyfive Design;

• Use the Website in a manner inconsistent with any applicable laws or regulations.

 

6. Client Feedback

Client acknowledges and agrees that any questions, comments, suggestions or other feedback or submission (each a “Submission”) shall be the sole property of Rubyfive Design and Rubyfive Design is under no obligation to keep a Submission confidential or take steps necessary to ensure the confidentiality of a Submission. Rubyfive Design shall be the sole and exclusive owner of all rights related to the Submission except to the extent that rights are granted to Client under Paragraph “Ownership of Materials”, and shall at its sole and unrestricted discretion use and disseminate a Submission for any lawful purpose without permission, acknowledgment or compensation of or to the Client. Client agrees that it has the right to articulate and put forth the Submission and Client hereby waives all claims and recourse against Rubyfive Design for its use of the Submission in accordance with the terms hereof and in its sole discretion hereafter.

 

7. Management and Oversite

Rubyfive Design reserves the right to monitor the Website for violations of these Terms of Use and to take appropriate legal action in response to a violation of the Terms of Use or any applicable law, statute or regulation. Rubyfive Design further reserves the right to restrict or deny access to the Website or disable the Client’s use of the Website. Such decision shall be in the sole discretion of Rubyfive Design, without notice or liability to Client. All decisions regarding the management of the Website shall be at the sole discretion of Rubyfive Design and shall be designed to protect Rubyfive Design’s rights and property.

 

8. Returns and Refunds

Rubyfive Design reserves the right to deny refunds based on its own self discretion and without notice or liability to Client. Refund requests are assessed on a case by case basis.

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9. Pricing and Services Changes

Rubyfive Design reserves the right to make changes to the pricing structure or the services offered at any stage. Existing Clients (Subscription holders) will be given advance notice of at least 30 days of any changes that may or will affect their subscription. 

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10. Dispute Resolution

Negotiation - Mediation - Arbitration: Any dispute relating to this these Terms & Conditions between Rubyfive Design and the Client shall initially be referred to each party for amicable resolution. The party raising the dispute will provide written notification particularising the issues. If by the close of 10 working days there is no resolution, the dispute may by agreement be referred to mediation by mutually agreed outside parties, or otherwise shall be referred to arbitration in under the Arbitration Act 1996 or any statutory modification or re-enactment.

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The costs of mediation or arbitration are equally shared subject to the arbitrator’s power to award costs. For clarity, mediation is not a prerequisite to commencing arbitration; however, the parties agree that while these dispute resolution options are extant no party may commence a Court proceeding or application, other than an application for urgent interlocutory relief.

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11. Modification

Rubyfive Design reserves the right to change, alter, modify, amend or remove anything or any content on the Website for any reason at its sole discretion. Rubyfive Design reserves the right to modify or discontinue all or part of the Website, including pricing and service offerings, without notice and without liability to Client.

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12. Connection Interruptions

Rubyfive Design does not guaranty or warrant the Website or other associated platforms or websites such as Notion, will be available and accessible at all times. Issues with hardware, software or other items may result in interruption delays or errors beyond Rubyfive Design’s control. Client agrees that Rubyfive Design shall not be liable to Client for any loss, damage or inconvenience caused by Client’s inability to access or use the Website or other such associated platforms or websites during any interruption in the connection or service.

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13. Limitations of Liability and Indemnification

Rubyfive Design and its owner, employees, members, independent contractors or agents shall not be liable to Client or any third party for any direct, indirect, consequential, incidental, special or punitive damages, including lost profit, lost revenue, lost data, legal fees, court costs, fines, forfeitures or other damages or losses arising from Client’s use of the Website.

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Client agrees to defend, indemnify and hold harmless, Rubyfive Design and its subsidiaries, affiliates and all respective officers, members, agents, partners, employees and independent contractors from and against any loss, damage, liability, claim or demand including reasonable legal fees and expenses, made by any third party due to or arising out of:

1. use of the Website;

2. breach of these Terms of Use;

3. any breach of Client’s representations and warranties set forth herein;

4. Client’s violation of the rights of any third party, including but not limited to intellectual property rights.

 

Notwithstanding the foregoing, Rubyfive Design reserves the right, at Client’s expense, to assume control and defence of any matter for which Client shall be required to indemnify Rubyfive Design hereunder. Client agrees to cooperate with the defence of such claims.

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13.1. Limitation of Liability (Third party acts):
The Deliverables provided by Rubyfive Design utilise third-party proprietary platforms. The Client acknowledges that Rubyfive Design has no control regarding any third-party platforms’ maintenance and operation, and Rubyfive Design has no platform-support function or role. If the operation of a third-party platform incurs downtime, or temporary or permanent discontinuance, then the Client expressly waives any claim against Rubyfive Design for each event and for any loss arising from the actions and decisions of the third-party platform provider and its agents.

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13.2. Limitation of Liability:
Rubyfive Design’s total liability under these Terms is limited to the total of the Client’s subscription fee, during the active months of the relevant project. This limitation applies whether the claim for loss is in contract, tort, or in equity.

 

13.3. Consequential Damages:
neither party shall be liable to the other for any consequential costs, losses, or damages including without limitation, loss of use, loss of profits, loss of production and cost of insurance relating to the performance or non-performance of this Agreement, and each party shall protect, defend, and indemnify the other against all such claims.

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14. Disclaimer

The Website is provided on an as-is, as-available basis. Client agrees that its use of the Website and Services are at Client’s sole risk. Rubyfive Design disclaims all warranties, express or implied, in connection with the Website and Client’s use thereof, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Rubyfive Design makes no warranties or representations about the accuracy or completeness of the Website or any content thereon or content of any websites linked to the Website and Rubyfive Design assumes no liability for any errors, mistakes or inaccuracies of content and materials, personal injury or property damage, of any nature whatsoever, any unauthorised access to or use of Rubyfive Design’s secure servers and/or any personal information and/or financial information stored therein, any interruption or cessation of transmission to or from the site, any bugs, viruses, Trojan horses or the like which may be transmitted to or through the Website by any third party and/or any errors or omissions in content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available through the Website. Rubyfive Design does not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party either through the Website, a hyperlinked website or any website or mobile application featured in any advertising.

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15. User Data

Client is solely responsible for all data transmitted to or that relates to any activity Client has undertaken using the Website. Rubyfive Design shall have no liability to Client for any loss or corruption of any such data and Client hereby waives any right of action against Rubyfive Design from any such loss or corruption.

 

16. Electronic communications, transactions and signatures

Client hereby consents to receive electronic communications from Rubyfive Design and Client agrees that all agreements, notices, disclosures and other communications sent via email or through the Website satisfy any legal requirement that such communication be in writing. Client hereby agrees to the use of electronic signatures, contracts, orders and other records, and to electronic delivery of notices, policies and records of transactions initiated or completed by Rubyfive Design or through the Website. Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records or to payments or the granting of credits by any means other than electronic.

 

17. Showcasing Design Work

Rubyfive Design reserves to right to share design work on digital channels including social media, website, etc. unless specifically requested in writing not to do so by the Client.

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18. Termination

The Client reserves the right to cancel their subscription at any stage. The monies paid to Rubyfive Design will allow access to the service until such time as the time period applicable has ended. 

 

Rubyfive Design reserves the right to cancel an agreement/subscription without notice or refund, in the event of gross misconduct by the other party. Gross misconduct includes but is not limited to: intentionally or knowingly misleading the other party, theft, illegal conduct or any other action which brings either the business or Rubyfive Design into disrepute. 

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19. Miscellaneous

These Terms of Use and any policies posted on the Website or regarding the Website constitute the entire agreement and understanding between the Client and Rubyfive Design. Failure of Rubyfive Design to enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. If any provision or part of these Terms of Use is determined to be unlawful, void or unenforceable, that provision shall be severed from these Terms of Use but shall not otherwise affect the validity or unenforceability of the remaining provisions herein. Nothing in these Terms of Use, the Privacy Policy or on the Website shall be construed to constitute the forming of a joint venture, partnership, employment or agency relationship between Client and Rubyfive Design.

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20. Entire agreement

Other than expressly excepted, these Terms constitute the entire agreement between the parties and supersedes all prior correspondence, understandings, representations or warranties or agreements whether written or oral.

 

21. Survival

The clauses that survive the termination of these Terms are: any indemnities, intellectual property provisions, limitation of liability, exclusion of consequential loss, dispute resolution, remedies, and Governing Law.

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22. Governing Law

This agreement and any disputes arising under it shall be governed by the laws of New Zealand and agree to submit to the jurisdiction of the appropriate laws of New Zealand.

 

23. Contact Information

For any questions or complaints regarding the Website, please contact Rubyfive Design at: steph@rubyfivedesign.co.nz

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Last updated: 19 March 2024