TERMS AND CONDITIONS
MCAULIFFE HOLDINGS LIMITED T/A HYPER DIGITAL
This document sets out the terms of trade of McAuliffe Holdings Limited trading as Hyper Digital. Please read these terms and conditions carefully.
1.1 In the Terms, unless the context requires otherwise:
Advertising means any advertising space purchased from a third party for the purposes of a Proposal.
Agreement means the entire content of this Terms and Conditions document including Schedules and the Proposal document(s), together with any exhibits, schedules or attachments hereto.
Client means the person/s or entity ordering the Goods and Final Deliverables as specified in any Proposal, invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under NZ Law.
Deliverables means the services and work product specified in the Proposal to be delivered by Hyper Digital to Client, in the form and media specified in the Proposal.
Designer Tools means all design tools developed and/or utilised by Hyper Digital in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
Final Art means all creative content developed or created by Hyper Digital, or commissioned by Hyper Digital, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Hyper Digital’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
Final Deliverables means the final versions of Deliverables provided by Hyper Digital and accepted by Client.
Payment Schedule means the schedule attached to the Proposal setting Hyper Digital fees and the time and method for payment.
Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Hyper Digital and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
Proposal means the document supplied by Hyper Digital to the Client setting out the proposed Deliverables, Project and Services to be provided by Hyper Digital and the timeframe, associated costs and method of payment.
Services means all services and the work product to be provided to Client by Hyper Digital as described and otherwise further defined in the Proposal.
Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts provision of, any Proposal.
2.2 These terms and conditions may only be amended with the Hyper Digital’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Hyper Digital.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.1 The terms of any Proposal created by Hyper Digital shall be effective for 30 days after presentation to Client. In the event the Proposal is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
4. FEES AND CHARGES
In consideration of the Services to be performed by Hyper Digital, Client shall pay to Hyper Digital fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule. Where no price is stated in writing or agreed requested work will be undertaken at the standard hourly rate set forth by Hyper Digital. The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of Hyper Digital between the date of the contract and delivery of the Goods.
Hyper Digital do not charge the client for general office expenses such as phone calls, internal printing however any expenses that are deemed out of the ordinary and requested by the Client will be billed in addition to the normal proposal (e.g. non-local travel costs)
4.3 Additional Costs
The Project pricing includes Hyper Digital’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, stock photography or illustrations and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
All invoices are payable in accordance with the payment schedule in the Proposal. Payment is to be made by the 20th of the month following the invoice. A monthly service charge of 2% (minimum $25) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Hyper Digital reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
4.5 Payment Allocation
Hyper Digital may in its discretion allocate any payment received from the Customer towards any invoice that Hyper Digital determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by Hyper Digital, payment shall be deemed to be allocated in such manner as preserves the maximum value of Hyper Digital purchase money security interest in the Goods.
4.6 Payment Schedule
Payment from Client should be in line with the payment schedule in the Proposal. Where there is no fixed Proposal or no payment schedule set within a Proposal all work shall be billed as it is done, whether this completes a Project or not. Where the Project is not completed invoices shall be treated as progress payments toward the completed Project. Should a scheduled or non-schedule progress payment not be paid on time work and timelines (including any timeline obligations) will cease until the required payment is made and Hyper Digital reserves the right to invoice the Client for the completed Project prior to undertaking the work required to complete the Project.
If the Payment Schedule in the Proposal provides for payment by direct debit, then the Client agrees to enter into a direct debit authority for the payments outlined in the payment schedule in the Proposal.
5.1 General Changes
Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Hyper Digital’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Hyper Digital may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such changes.
5.2 Substantive Changes
If Client requests or instructs changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, Hyper Digital shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Hyper Digital.
Hyper Digital will prioritise performance of the Services as may be necessary or as identified in the Proposal and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either,
(i) approve the Deliverables in writing or
(ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Hyper Digital. Hyper Digital shall be entitled to request written clarification of any concern, objection or correction.
Client acknowledges and agrees that Hyper Digital’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Hyper Digital’s obligations under this Agreement.
5.4 Testing and Acceptance
Hyper Digital will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Hyper Digital, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Hyper Digital will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
6. CLIENT RESPONSIBILITIES
6.1 Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Hyper Digital;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
(d) on-time payment of all accounts
7.1 Hyper Digital retains the right to reproduce, publish and display the Deliverables in Hyper Digital’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
8. CONFIDENTIAL INFORMATION
8.1 Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party or is otherwise properly received from a third party without an obligation of confidentiality.
9. RELATIONSHIP OF THE PARTIES
9.1 Hyper Digital is an independent business and shall provide the Services under the general direction of Client, but Hyper Digital shall determine, in Hyper Digital’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. Hyper Digital and the work product or Deliverables prepared by Hyper Digital shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to the Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
9.2 Hyper Digital Agents
Hyper Digital shall be permitted to engage and/or use third party designers, developers or other service providers as independent contractors in connection with the Services. Notwithstanding, Hyper Digital shall remain fully responsible for such third parties’ compliance with the various terms and conditions of this Agreement.
9.3 No Exclusivity
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Hyper Digital, and Hyper Digital shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Hyper Digital.
10. WARRANTIES AND REPRESENTATIONS
10.1 Client Warranties and Representations
The Client represents, warrants and covenants to Hyper Digital that:
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
10.2 Hyper Digital Warranties and Representations
Hyper Digital hereby represents, warrants and covenants to Client that:
(a) Hyper Digital will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such Services.
(b) Hyper Digital further represents, warrants and covenants to Client that
(i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Hyper Digital and/or its independent contractors,
(ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Hyper Digital, Hyper Digital shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Hyper Digital to grant the intellectual property rights provided in this Agreement, and
(iii) to the best of Hyper Digital’s knowledge, the Final Art provided by Hyper Digital and Hyper Digital’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Hyper Digital shall be void.
(c) Except for the express representations and warranties stated in this agreement, Hyper Digital makes no warranties whatsoever, Hyper Digital explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
11.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Hyper Digital which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Hyper Digital, Hyper Digital’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
11.2 Except as otherwise provided by clause 10.1 Hyper Digital shall not be liable for:
11.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Goods by Hyper Digital to the Client, including consequential loss whether suffered or incurred by the Client or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Hyper Digital to the Client; and
11.2.2 The Client shall indemnify Hyper Digital against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Hyper Digital or otherwise, brought by any person in connection with any matter, act, omission, or error by Hyper Digital its agents or employees in connection with the Goods.
12. TERM AND TERMINATION
12.1 This Agreement shall commence upon the Effective Date and shall remain effective until cancelled by either party.
12.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
12.3 In the event of termination, Hyper Digital shall be compensated for the Services performed through the date of termination in the amount of
(a) any advance payment,
(b) a prorated portion of the fees due, or (c) hourly fees for work performed by Hyper Digital or Hyper Digital’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
12.4 In the event of termination by Client and upon full payment of compensation as provided herein, Hyper Digital grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
12.5 Upon expiration or termination of this Agreement:
(a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and
(b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Hyper Digital’s invoices may include, and Client shall pay, expenses or costs that Client authorises by electronic mail. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices to be given hereunder shall be transmitted in writing either by mail or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
13.3 No Assignment
Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
13.4 Force Majeure
Hyper Digital shall not be deemed in breach of this Agreement if Hyper Digital is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of Hyper Digital or any local, national or international law, governmental order or regulation or any other event beyond Hyper Digital’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Hyper Digital shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
13.5 Governing Law and Dispute Resolution
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of New Zealand without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through a forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. Client acknowledges that Hyper Digital will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Hyper Digital shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control.
13.9 Consumer Guarantees Act
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Hyper Digital for the purposes of a business in terms of section 2 and 43 of that Act.
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement.
14. Personal Guarantee of Company Directors or Trustees
14.1 If the Client is a company or a trust, the director(s) or trustee(s) signing this contract of terms and conditions of trade, in consideration for the Hyper Digital agreeing to supply Deliverables and Services subject to a Proposal and grant credit to the Client at their request, also sign this Agreement in their personal capacity and jointly and severally personally undertake as principal debtors to Hyper Digital the payment of any and all monies now or hereafter owed by the Client to Hyper Digital and indemnify Hyper Digital against non-payment by the Client. Any personal liability of a signatory of this Agreement will not exclude the Client in any way whatsoever from the liabilities and obligations contained in this Agreement. The signatories and Client will be jointly liable under this Agreement of terms and conditions of trade and for payment of sums due under the contract.
SCHEDULE A: INTELLECTUAL PROPERTY PROVISIONS
1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
1.1 Client Content
Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Hyper Digital a nonexclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Hyper Digital’s performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement.
1.2 Third Party Materials
All Third Party Materials are the exclusive property of their respective owners. Hyper Digital shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Hyper Digital shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Hyper Digital from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
1.3 Preliminary Works
Hyper Digital retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Hyper Digital within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Hyper Digital.
1.4 Original Artwork
Hyper Digital retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Hyper Digital within 30 days of completion of the Services.
Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Hyper Digital assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Hyper Digital for use by Client as a Trademark. Hyper Digital shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Hyper Digital from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
1.6 Designer Tools
All Hyper Digital Tools are and shall remain the exclusive property of Hyper Digital. Hyper Digital hereby grants to Client a nonexclusive, non-transferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Hyper Digital Tools comprising any software or technology of Hyper Digital.
2. RIGHTS TO FINAL ART
Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Hyper Digital hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Hyper Digital agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
SCHEDULE B: INTERACTIVE-SPECIFIC TERMS AND CONDITIONS
1. SUPPORT SERVICES (WARRANTY, TRAINING AND HOSTING)
1.1 Warranty Period
“Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. The warranty period is for 60 days from project launch. During this period any bugs or errors that become evident will be corrected at no cost to Client. This does not include enhancements or additions to the project.
1.2 Training and Initial Support Period
The training and initial support period runs concurrently with the warranty period and allows unlimited support to Client to assist with learning the administration software. This support is available via email and phone. Face-to-face meetings or additional training sessions (over and above the standard training programme) will be billable to Client.
All hosting is provided by third part providers. All providers offer back-up systems and server protection in-line with expected industry standards. Hyper Digital will not be liable for any loss or disruption of data while hosted with third parties. This includes but is not limited to data loss from email / website hosting system failures or outages, viruses, malicious hacking, actual or perceived loss due to downtime of servers or systems. Hyper Digital makes no up-time guarantees.
1.4 Data Security
While Hyper Digital takes all reasonable precautions and practices no guarantees are made that any company data, whether on an internal or external server or sent or received via electronic transfer or email is secure from malicious use.
2.1 During the Maintenance Period, Client may request that Hyper Digital develop enhancements to the Deliverables, and Hyper Digital shall exercise commercially reasonable efforts to prioritize Hyper Digital’s resources to create such enhancements. The parties understand that pre-existing obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Hyper Digital’s then in effect price for such services.
3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
Subject to the representations and warranties of Client in connection with Client Content, Hyper Digital represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by Hyper Digital, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Hyper Digital’s sole liability for a breach of this Section is the obligation of Hyper Digital to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Hyper Digital, Hyper Digital’s sole obligation shall be to substitute alternative Third Party Materials.
3.2 Hyper Digital Tools
Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Hyper Digital represents and warrants that, to the best of Hyper Digital’s knowledge, the Hyper Digital Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
4. COMPLIANCE WITH LAWS
4.1 Hyper Digital shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.
SCHEDULE C: ENVIRONMENTAL-SPECIFIC TERMS AND CONDITIONS
1. PHOTOGRAPHS OF THE PROJECT
1.1 Hyper Digital shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for Hyper Digital’s promotional purposes in accordance with Section 6 of the Terms and Conditions of this Agreement.
2. ADDITIONAL CLIENT RESPONSIBILITIES
2.1 Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:
(a) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;
(b) Provision of accurate and complete information and materials requested by Hyper Digital such as, by way of example, content, branding, guidelines, colour guidelines and other inclusions in the finished art;
(c) Final proofreading and approval of all Project documents including, by way of example, not limitation, artwork, message schedules and design drawings before their release for printing or development. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors.