Terms and Conditions

Terms and Conditions

Legal Notices

hyperCMS provides, maintains services, and software products to its customers and other interested parties. By using any software, information and/or service owned, and operated by hyperCMS or its affiliates, you agree to comply with and be bound by the following terms of use, which may change at any time. If you do not agree to the terms and conditions below, please do not use this site or any of its pages.

Use of Materials

All material contained on the website, product or service related documents is owned by hyperCMS and/or its suppliers and protected by copyright laws. Any material may also be the subject of other intellectual property rights of hyperCMS and/or its suppliers all of which rights are reserved by hyperCMS and its suppliers.

Material from the hyperCMS website and/or documents may be printed or downloaded for your own informational, or educational purposes only, provided that you include all copyright and proprietary notices originally included. You may not attempt to "pass-off" any of the material as your own. You may not post on any other website, display, or distribute the material without the express prior written consent of hyperCMS.

Computer Software

Any computer software provided by hyperCMS, which may also be downloaded or is otherwise available from the website is licensed subject to the terms of its associated license agreement only, unless expressly stated otherwise. Except as expressly warranted in the associated license agreement, hyperCMS disclaims all warranties and conditions with regard to the software, including all implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.

Third Party Materials

The products and website may contain materials including software in executable or source code form, which is submitted by third parties for inclusion on the hyperCMS products or website ("third party materials"). Please be advised that hyperCMS has not independently tested or evaluated such third party materials and provides them on this website merely as a service to its users. All third party materials on the hyperCMS website and in products are provided "as is", without warranty of any kind, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. To the maximum extent permitted by law, hyperCMS disclaims all liability for any claims, demands, suits or actions, under any theory of liability, arising out of the use or attempts to use such third party materials.

Governing Law

These terms and conditions are governed by and to be construed in accordance with Austrian law. Any disputes shall be subject to the exclusive jurisdiction of the Austrian courts.

Attention

By issuing an order client agrees to be bound by the terms of these terms and conditions.

Performance of Services

Subject to the terms of these terms and conditions, hyperCMS shall provide to client and client agrees to pay for the services. hyperCMS shall assign to client all proprietary rights in the deliverables and related materials (including any translation memory) created by it pursuant to these terms and conditions subject to hyperCMS being paid in full for the services.

Terms and Conditions for Language Services

These language services terms and conditions constitute a legally binding agreement between the client (You, whether an individual, corporation, or other entity) and hyperCMS, where " hyperCMS" means a company commissioned by You to perform services (as defined below) and where that company is hyperCMS (a company incorporated under the laws of Austria) or a company owned, owning or under common ownership with hyperCMS.

"Services" means, other than where the authorized representatives of client and hyperCMS have explicitly agreed to separate contractual terms and conditions concerning these, any professional language services including, without limitation, localization and/or translation and/or, in connection with these, desktop publishing, project management and/or engineering of software files, text and other computer medium, and/or reading from a prepared script, where such is commissioned by client to be performed by hyperCMS. An "order" means: (i) client’s signature or other indication to hyperCMS of the acceptance of a quotation of hyperCMS for Services; or (ii) a purchase order of client or other instruction reasonably understood by the parties to authorize the inception of services, but excluding any terms and conditions proposed by client and not expressly accepted by hyperCMS.

Client Obligations

Client accepts that it is responsible for verifying that the services are suitable for its needs. Client shall supply all components, information, and materials reasonably necessary to enable hyperCMS to provide the services. Client confirms that it owns or is legally entitled to possess and use such components, information, and materials and hereby grants to hyperCMS a license to use the same for the purposes of providing the services. Client’s failure to supply the foregoing when reasonably required by hyperCMS shall relieve hyperCMS of any obligation to perform services to a previously agreed schedule. Client shall indemnify and keep indemnified hyperCMS from and against any liability, losses, damages, costs and expenses arising from hyperCMS's use or possession of any components or other materials supplied by client to hyperCMS. Client shall, within ten (10) business days of receipt of any finished deliverable of the services, notify hyperCMS in writing of any suspected defects or errors. In the absence of such notification client shall be deemed to have accepted the deliverable of the services. Client shall not withhold acceptance because of any discrepancy which does not significantly compromise the accuracy of any deliverable.

Service Fees

Client agrees to pay to hyperCMS for the products and services the fees and expenses set forth on the applicable order in the currency specified therein. All payments due to hyperCMS hereunder are due within  fourteen (14) days of the date of the applicable invoice. All unpaid amounts due to hyperCMS hereunder shall bear interest at the rate of ten percent (10%) per month or the highest rate permitted by governing law, whichever is less. All amounts due to hyperCMS hereunder are net of any and all taxes (including withholding taxes), assessments, charges, and levies of any governmental authority, all of which shall be the sole obligation of client, except for taxes payable on the income of hyperCMS.

Services Warranty

hyperCMS represents and warrants to client that: (i) it has the right to perform the services in accordance with the terms of these terms and conditions; and (ii) it will perform the services in accordance with customary industry standards although, such services being the product of human endeavour, hyperCMS does not represent that they shall be error-free. hyperCMS hereby disclaims all other representations and warranties, whether express or implied, including, without limitation, implied warranties of merchantability and/or fitness for use and/or a particular purpose.

Term and Termination

These terms and conditions shall expire when the all the obligations of the parties under all orders are complete, and may be terminated by either party: (i) with immediate effect if the other party fails to perform any of its material obligations under these terms and conditions and such failure continues for 14 days after written notice; or (ii) upon 30 days written notice. Upon such expiration or termination all fees including fees for work-in-progress shall fall due and each party shall deliver to the other any property belonging to that other party. Termination shall not affect any accrued rights and liabilities of either party.

hyperCMS is especially entitled to withhold its services while maintaining its rights under the contract, if the business partner

a) does not permit maintenance by hyperCMS;

b) is misusing the product or causing interference;

c) does not settle unpaid invoices for more than 2 months;

d) sets other actions, conflicting with the business policy of hyperCMS.

Limitations on Liability

hyperCMS do not need to fix errors free of charge that could have been found in a test by the client before taking the service or solution into production. Due to the nature of the IT industry, an error-free availability of services is not always possible. A temporary service downtime lasting up to 72 hours after written information to hyperCMS by the client does not lead to a claim of any kind. Forcontinuous downtime of more than 72 hours the client is allowed to claim credits in the form of operation fees that will be paid in future, which can reach the maximum height of a quarterly fee.
In no event shall either party be liable under these terms and conditions under any circumstances for consequential or indirect damages of any nature whatsoever including, without limitation, any lost revenues or profits. Nor shall hyperCMS be liable for any claim that any deliverable of the Services infringes the intellectual property rights of a third party where the infringement arises from materials supplied by client to hyperCMS. Other than for physical injury or death caused by a party’s negligence, notwithstanding anything in these terms and conditions to the contrary the parties agree that each party’s aggregate liability under these terms and conditions shall not exceed, under any circumstances, the amount of fees paid to hyperCMS pursuant to these terms and conditions during the preceding three (3) month period or twenty thousand Euro (EUR 25,000), whichever is the lesser.

Restrictions on Disclosure of Confidential Information

Each party shall: (i) maintain in confidence all information disclosed by the other relating to the disclosing party’s business ("confidential information"); and (ii) use such information only in connection with these terms and conditions. This provision shall not apply to information which: (i) becomes generally available to the public through no fault of the receiving party; (ii) was independently developed by the receiving party without access to the disclosing party’s confidential information; (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source is not prohibited from transferring the information to the receiving party by any contractual, legal or fiduciary obligation; or (iv) is disclosed by hyperCMS to its subcontractors for use only in connection with these terms and conditions and under a duty of confidentiality no less onerous than that of the parties hereunder. The parties agree that all confidentiality obligations shall survive for a period of three (3) years from the date of disclosure and that each party shall, upon request, return or delete all documents and electronic media containing the other party’s confidential information, including all copies thereof.

Entire Agreement and Severability

These terms and conditions, together with the relevant order contain the entire agreement and understanding between the parties relating to the subject matter hereof, and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to such subject matter. In the event of any conflict between an order and then these terms and conditions shall prevail. No variation of the provisions of these terms and conditions will be valid unless confirmed in writing by the authorised signatories of both parties. If any provision of these terms and conditions is declared invalid or illegal for any reason, then the remaining provisions of these terms and conditions shall remain in full force and effect in the same manner as if the invalid or illegal provision had not been contained herein. No failure on the part of either party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any future exercise thereof or the exercise of any other right or remedy.

Remedies

Each party acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of these terms and conditions by the other party and that any such breach would cause such party irreparable harm. Accordingly, each party agrees that in such event, the other party, in addition to any other remedies at law or in equity it may have, is entitled, without the requirement of posting any security, to equitable relief, including injunctive relief and specific performance.

Force Majeure

Neither party hereto shall be liable for any breach of its obligations hereunder resulting from force majeure which, for the purposes of these terms and conditions, means any cause beyond the reasonable control of the party in question. The foregoing shall not apply in respect of any obligation of client to make payment hereunder. Each party shall give notice to the other upon becoming aware of an event of force majeure, such notice to contain details of the circumstances giving rise to such event. If a default due to an event of force majeure shall continue for more than six weeks then the party not in default shall be entitled to terminate the order affected by such event.

Governing Law and Jurisdiction

These terms and conditions shall be governed by and interpreted in accordance with the laws of Austria and the parties submit to the exclusive jurisdiction of the Austrian Courts. The parties agree that they will attempt to settle any dispute arising out of these terms and conditions by negotiation between the parties.