Terms of Service

DEFINITIONS

• Client means the person, entity, or representative signatory to these terms and issuing the purchase order (if applicable) to Rubyfive Design;

• Deliverables means the services and work products specified in the Proposal delivered by Rubyfive Design to the Client;

• Final Deliverables means the final versions of the Deliverables provided by Rubyfive Design and accepted by the Client;

• Project Price means the price estimate in the Proposal and agreed by the CLIENT;

• Proposal means Rubyfive Design’s outline of the proposed scope of work; project dependencies and timelines, and the estimated fees and costs for the Deliverables;

• Rubyfive Design means Stephanie Holt trading as Rubyfive Design at 73A Redwood Street, Blenheim, Marlborough 7201, New Zealand;

• Scope of Work means the work detailed in the Proposal;
   

STANDARD TERMS OF SERVICE

This document contains Rubyfive Design’s standard terms of service.  These terms will govern our relationship unless agreed by Variation of Agreement.  By instructing Rubyfive Design to undertake the Proposal’s services the Client is deemed to have agreed these terms. Unless agreed in writing these terms do not grant rights or permissions to any third party.

 

SERVICES

Rubyfive Design shall perform the services in the Proposal.  The Proposal expires 30 days after its delivery to the Client.  If this Agreement expires Rubyfive Design may modify the Proposal and resubmit it to the Client.  Rubyfive Design is an independent contractor and shall determine in its sole discretion the manner and means by which the Proposal is implemented.

 

PAYMENT

Deposit: The Client agrees to pay Rubyfive Design an initial payment of 50% of the project fee, 25% on delivery of first proof and the balance on acceptance of the Final Deliverables. If the Client suspends or cancels the project Rubyfive Design will retain entire monies paid as compensation for services rendered and all files, creative expirations and designs remain the property of Rubyfive Design.

Disbursements: are charged besides the project fee, which include without limitation these costs: printing, travel, accommodation, meals, postage, and courier.

Payment: Rubyfive Design will promptly invoice the Client for services supplied as priced under the Proposal.  The Client will pay Rubyfive Design 14 days from receipt of a GST invoice. After that, unpaid invoices incur a 10% late fee, and every subsequent week, incurs an additional late fee of 2.5%.

No set-off or deduction: any invoice issued by Rubyfive Design must be paid in full and without set-off or deduction.

Withhold Delivery: Rubyfive Design may withhold delivery and transfer of ownership of any work if accounts are not current or overdue invoices are not paid in full.
 

CLIENT RESPONSIBILITIES

The Client acknowledges that it performs in a reasonable and timely manner: (i) provision of Client content in a form suitable for the Deliverables without further preparation by Rubyfive Design, unless specified in the Proposal; and (ii) review and acceptance of the Deliverables.

PROJECT SCOPE CHANGE

Change to Scope of Work: if after acceptance of the Proposal, the Client wants to change the Scope of Work, the Client must describe in writing the requested changes.  Within 3 days of receiving the request, Rubyfive Design will respond with advice that proposes availability, additional fees, changes to delivery dates and any modification to these terms.

Major change request: If the change request is at or near to 25 percent of the time required to produce the Deliverables, or the value of the Scope of Work, Rubyfive Design may submit a new and separate Proposal to the Client for written approval.  Rubyfive Design will not commence work on the revised services until the Client accepts the Proposal and any additional fees.

Minor change request:  If the requested changes are not Major Changes, Rubyfive Design will invoice on a time and materials basis at under the Proposal rate.  These charges are besides all other amounts payable under this Agreement, despite any maximum budget, contract price, or final price identified.  Rubyfive Design may extend or modify any delivery schedule deadlines in the Agreement as required by such changes.

Acceptance/Rejection: The Client will have 5 days to respond in writing either accepting or rejecting a new Proposal.  If the Client rejects the Proposal, Rubyfive Design is not obligated to perform any services beyond those in the original Proposal.

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DELAYS

Delay: Rubyfive Design will use reasonable efforts to deliver the services agreed under the Proposal; however, it may extend the due date for any Deliverable by giving written notice to the Client and the total of all extensions shall not exceed 15 working days.

Delay: The Client will use reasonable efforts to provide information, materials, and approvals.  Any delay by the Client will cause a day-for-day extension of the due date for Deliverables.  If the Client’s  delay continues for six months calculated from Rubyfive Design’s request for information, materials, and approvals, then the project is deemed abandoned and Rubyfive Design’s obligation to provide the Deliverables terminates.  If the Client resurrects the project after abandonment, Rubyfive Design may issue a new Proposal recording any change in pricing; resources, and project timelines.

General Delays: a delay caused by circumstances beyond the reasonable control of the parties is not a breach and results in a day-for-day extension of any performance due.  The party seeking to invoke this clause shall notify the other party in writing within 5 working days of any such event.  Circumstances beyond the reasonable control includes one or more Force majeure events.

 

OWNERSHIP

Ownership: subject to payment in full of all invoices the Deliverables produced by Rubyfive Design is the property of the Client.  All intermediate materials originated and provided by Rubyfive Design and used in the production of the Deliverables is the property of Rubyfive Design unless otherwise agreed to in writing.  All intermediate materials originated and provided by the Client is the property of the Client.  Intermediate materials include without limitation: conceptual work, data, visual media, audio media, drawings, sketches, artwork, film, fonts, and stock images.  The Client may not change, create derivative works, or extract portions of the Final Deliverables unless authorised in writing by Rubyfive Design.

Copyright: 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.

 

TERMINATION & CANCELLATION

Termination for Cause: either party may terminate this agreement at any time on 5 working days prior written notice if the other party breaches any of its material responsibilities under this Agreement and fails to remedy the breach during that 5 day period.

Cancellation: after acceptance of the Proposal the Client may by written notice cancel the Deliverables.  Rubyfive Design shall invoice for all work undertaken to receipt of the notice of cancellation and the Client shall pay the invoice without deduction or set-off.

 

TESTING & ACCEPTANCE

Testing: before providing the Client with the Deliverables Rubyfive Design will use reasonable efforts to test and correct the Deliverables.   

Acceptance: The Client is solely responsible for checking the Deliverables and shall, within 5 working days after receipt of the Deliverables, notify Rubyfive Design in writing of any failure to comply with the Proposal or of any objections, corrections, or changes (“Notice”).  Rubyfive Design shall, within 5 working days advise in writing its acceptance of the compliance notification.  All objections’ corrections and changes are subject to the terms of this Agreement.  If the Client provides no Notice within the period, then it is deemed to have accepted the Deliverables.  If Rubyfive Design rejects the Notice within the period, then the Dispute Resolution procedures apply.

Correction charges: The Client will be charged for correcting errors after the acceptance of any Deliverable.   

 

DISPUTE RESOLUTION

Negotiation - Mediation - Arbitration: any dispute relating to this Agreement 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.

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.

 

LIABILITY

Limitation of Liability (Third party acts): The Deliverables provided by Rubyfive Design utilises a third-party proprietary platform.  The Client acknowledges that Rubyfive Design  has no control regarding the platform’s 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.

Limitation of Liability: Rubyfive Design’s total liability under this Agreement is limited to the total of the Project Price agreed under the Proposal.  This limitation applies whether the claim for loss is in contract, tort, or in equity.

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.

 

REPRESENTATIONS & WARRANTIES

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

 

OTHER MATTERS

Notices: all notices in connection with this Agreement shall be legibly communicated in writing and may be delivered in registered mail, email, personal service or in any other effective and practical form.

No partnership: this Agreement shall not be deemed to constitute either party as the partner of the other, or the agent legal representative of the other.  Neither party shall have any authority to act to assume any obligation or liability on behalf of the other.  All rights granted to the Client are contractual in nature and are expressly defined by this Agreement.

Assignment: rights or obligations under this Agreement shall not be transferred, assigned, or encumbered without prior written consent of the other party.

Severability:  if any part of this Agreement is held invalid, the remainder of the Agreement shall continue in force and effect as if the invalid provision had been deleted provided however that the parties to this Agreement may negotiate a valid and enforceable provision and replacement of the invalid provision.

Variation of Agreement: no amendment to this Agreement is effective unless it is in writing and signed by both parties.

Waiver: failure by Rubyfive Design to require performance of any obligations of the Client under this Agreement shall not affect the right of Rubyfive Design to enforce any provision at a subsequent time.

Entire agreement: other than expressly excepted, this Agreement constitutes the entire agreement between the parties and supersedes all prior correspondence, understandings, representations or warranties or agreements whether written or oral.

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

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.