AMO GENERAL TERMS AND CONDITIONS:
INTRODUCTION
This document records the general terms and conditions under which AMO operates products and services.
COMMENCEMENT AND DURATION OF CONTRACT
This Contract shall commence on the date of signature by both Parties on the Order Form and shall continue in force unless or until termination or expiry in accordance with the provisions of this Contract.
USE OF THE SERVICES
The Customer shall not use the Services in any way that does not comply with:
a) the terms of any legislation, regulation or licence applicable to AMO or to the Customer including but not limited to copyright or that is in any way unlawful;
b) any instruction given by AMO in relation to health & safety or the quality of the Services;
c) any other instruction given reasonably by AMO or by any other competent authority as may be necessary from time to time.
CHANGES TO THE SERVICES
AMO reserves the right to change the Services from time to time and to revise the relevant offering accordingly provided that:
a) such changes to the Services (which may include the withdrawal of some Services and their replacement with new Services) are part of ongoing product development;
b) subject to clauses c) and d) below, AMO will give the Customer not less than 1 months notice of such changes and, if reasonable, will provide a suitable replacement for any withdrawn Services;
c) if the Customer objects to the change, the Customer shall give notice of such objection within 2 weeks of the date on which AMO gave notice of the proposed change and the Parties shall thereafter use reasonable endeavours to meet and agree a change that is acceptable for both Parties within a further period of 4 weeks as may be extended by Contract between the Parties; and
d) if the Parties are thereafter unable to agree upon an acceptable change, then either AMO may give 12 months notice of its intention to implement the proposed change in which event the Customer shall have the right to terminate the Services by 3 months notice without any liability for Termination Charges if in its reasonable opinion it considers the notified change to be detrimental, or AMO may withdraw its proposed Change.
ONWARD SUPPLY OF SERVICES
The Customer shall not be entitled to resell any of the Services provided by AMO without prior contract from AMO.
INTELLECTUAL PROPERTY RIGHTS
The Customer shall not acquire title to:
a) any Intellectual Property Rights in the Services or associated with the provision of the Services;
b) AMO’s Intellectual Property Rights; nor
c) any third party Intellectual Property Rights used in the provision and performance of the Services,
unless this is specifically set-out in the Special Terms and Conditions of the Services.
AMO grants to the Customer for the duration of this Contract a royalty-free, non-exclusive, non-transferable licence to use the Documentation, together with any software provided pursuant to the Services, to the extent that it is able to do so and it is necessary to enable the Customer to use the Services.
The Customer shall not, without AMO's prior written consent, copy, decompile or modify software, nor copy any Documentation (except as permitted by law).
The Customer shall sign any Contract reasonably required by the owner of the copyright in the software or any part of the Documentation to protect the owner's interest in that software and/or Documentation.
CONFIDENTIALITY
7.1 The Parties will keep in confidence any information (whether written or oral) of a confidential nature obtained under this Contract and shall not, without the written consent of the other Party, disclose that information to any person (other than their employees or professional advisers who need to know the information).
7.2 This Clause 7 shall not apply to:
a) any information that has been published other than through a breach of this Contract;
b) information lawfully in the possession of the recipient before the disclosure under this Contract took place;
c) information obtained from a third Party who is free to disclose it; and
d) information which a Party is required to disclose by law providing that prior to such disclosure the other Party is consulted as to the proposed form, nature and purpose of the disclosure.
7.3 The obligations of confidentiality contained in this Clause 7 will remain in effect for 2 years after the termination of this Contract.
LIMITATION OF LIABILITY
8.1 Nothing shall exclude or limit the liability of either Party for the death or personal injury caused by its negligence, or for fraud, or for any other liability that may not be excluded or limited by law.
8.2 Except for the liability of the Customer under clause 9, the aggregate liability of either Party to the other under a Contract for all losses, damages, costs, claims or expenses suffered by the other arising out of or in connection with any breach by such Party of the terms of any Contract or any tort or breach of statutory duty in connection with such Party’s obligations under any Contract shall be limited in the following ways:
a) the amount recoverable shall be no more than 100% of Service Charges in any 12 month period in which the circumstances giving rise to such claim(s) arise(s), and
b) neither Party shall be liable to the other in respect of any loss of revenue, profits or business, loss of data, or any indirect or consequential loss, irrespective of whether such loss was foreseeable or whether the Party has been advised of the possibility that such loss may be incurred.
CUSTOMER INDEMNITY
9.1 The Customer shall indemnify and defend AMO (at the request of AMO) against any claims or legal proceedings that are brought or threatened against AMO by any third Party arising in relation to the Customer’s usage of the Services supplied by AMO to the Customer, where such usage is not in accordance with the terms of this Contract. This includes the copyright and ownership of Media Files that the Customer has supplied to AMO.
9.2 AMO will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings and have due regard to the Customer’s representations.
9.3 Clause 9 shall remain in force after the termination of this Contract
CHARGES AND PAYMENT
10.1 The Charges
10.1.1 The Customer shall pay the Charges for the Services that are detailed or referred to in the Order Form (as may be amended from time to time in accordance with this Contract) and Additional Charges (if any) as may be detailed or referred to in the Order Form and/or be payable by the Customer in accordance with this Contract.
10.2 Payment Method
10.2.1 The Customer shall pay all invoice amounts properly due by either:
a) Cheque or electronic transfer to the AMO’s nominated bank account, details of which shall be notified by AMO to the Customer in writing; or
b) Debit Order.
10.2.2 The Customer shall specify its elected payment method on the Order Form (or subsequently by notice).
10.2.3 In the event that the Customer elects to pay by Debit Order it shall send AMO a completed and signed Debit Order mandate along with the signed Order Form.
10.3 Interest and remedy for late payment
If the Customer fails to pay any properly invoiced amount by the Due Date for such payment:
a) AMO may charge interest on any such amount at a rate equal to 4% per annum above the base lending rate of Nedbank. Interest will be compounded on a daily basis for the period commencing on the Due Date and ending on the date on which payment is made; and
b) If such Charges remain unpaid more than thirty (30) days after the Due Date, AMO may at its sole discretion (and without prejudice to any other remedy under the Contract) suspend the supply of all or part of the Services and shall be entitled to Charge the Customer its reasonable costs in restoring the Services after any such period of suspension.
10.4 V.A.T.
All Charges due to AMO under the Contract, unless indicated to the contrary, are exclusive of Value Added Tax, and any other applicable taxes which may from time to time be introduced, which shall be charged thereon in accordance with the relevant regulations in force at the time of making the taxable supply and shall be paid by the Customer.
10.5 Additional Charges
AMO reserves the right to charge the Customer at its normal and reasonable rates for man-hours and materials for any work undertaken by AMO at the request of the Customer which is not included in the Services.
10.6 Price Increase
10.6.1 If at any time the cost to AMO of supplying the Services increases such that in its sole opinion it is no longer viable to continue to supply the Services at the relevant Charge, AMO may give notice of a proposed increase to the Service Charge not less than 30 days prior to the price increase
10.6.2 If the Customer objects to the proposed Price Increase then the Customer shall give notice of such objection within 14 days of the date of AMO’s notice under clause 10.6.1 and the parties shall thereafter use reasonable endeavours to meet and agree a price increase in good faith that is acceptable for both parties within a further period of 4 weeks as may be extended by agreement between the parties.
10.6.3 If the parties are unable to agree upon an acceptable proposed price increase, then either AMO may implement the proposed Price Increase in which event the Customer shall have the right to terminate the Agreement by thirty (30) days prior notice without any liability for Termination Charges, or AMO may withdraw its notice under clause 10.6.1.
DISPUTE RESOLUTION AND ARBITRATION
11.1 Dispute
11.1.1 If a dispute arises between the Parties, then AMO or the Customer must give written notice to the other of the reasons for the dispute and AMO and the Customer will use their reasonable endeavours to meet as soon as practicably possible and to enter discussions in good faith resolve the dispute.
11.1.2 In the event of a bona fide dispute regarding any invoice amount the Customer shall pay the undisputed element of the Charges pending resolution of the dispute.
11.1.3 If as a consequence of a dispute it is determined that an amount is owed by the Customer to AMO such amount shall be paid to AMO:
(i) together with daily interest applied to such amount at a rate equal to four (4) per cent per annum above the base lending rate of Nedbank as current from time to time whether before or after judgement from the date on which such amount was due until it is paid; and
(ii) no later than thirty (30) days after the resolution of the dispute.
11.2 Arbitration
11.2.1 Any dispute that is not settled by the provisions of Clause 11.1 should be submitted to mediation by a mediator agreed to by both parties. Should such mediation fail, then the matter will be decided by arbitration.
11.2.2 The arbitration shall be handed over for arbitration to the Arbitration Foundation of South Africa (AFSA), and shall be held in Pietermaritzburg unless otherwise agreed upon by both parties in writing.
11.2.3 The arbitrator or arbitrators shall be appointed by the Foundation. If there is a dispute as to the appointment of the arbitrator, such dispute shall be referred to the President, for the time being, of the KwaZulu-Natal Law Society on application by any of the parties to the dispute.
11.2.4 Arbitration shall be carried out in accordance with the rules of the Foundation. The rules of the Foundation can be found at: http://www.arbitration.co.za.
11.2.5 All costs of mediation and/or arbitration are to be divided equally between the Parties.
11.2.6 For the avoidance of doubt, nothing in this clause shall prevent the Parties from agreeing any alternative dispute resolution process to that set out above.
TERMINATION FOR BREACH OF THIS CONTRACT
12.1 Either Party may terminate this Contract:
a) immediately on notice in writing if the other Party commits a material breach of this Contract, which is capable of remedy, and such other fails to remedy such breach within 30 days of a written notice to do so; or
b) immediately on notice in writing if the other Party commits a material breach of this Contract which cannot be remedied; or
c) on 30 days notice in writing if the other Party is repeatedly in breach of this Contract and fails to remedy the breach(es) within 30 days of a written notice to do so; or
d) immediately on notice in writing if the other Party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over all or any part of their assets, or a meeting of creditors is called or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the other Party.
12.2 If any of the events detailed in clause 12.1 occur and the Customer is the defaulting Party, AMO may, on giving prior notice where practicable, suspend the Services without prejudice to its right to terminate this Contract. Where Services are suspended under this clause:
a) the Customer must pay any Charges due for the Services until this Contract is terminated; and/or
b) AMO shall be entitled to Charge the Customer its reasonable costs in restoring the Services following any such period of suspension.
12.3 If any Party delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either Party waives a breach of this Contract that waiver is limited to that particular breach.
12.4 If this Contract is terminated by AMO during the Minimum Period as a result of a breach of this Contract by the Customer then the Customer must pay AMO, without prejudice to any other rights AMO may have, the Termination Charges.
REGULATORY MATTERS
AMO reserves the right to modify the Services to the extent necessary if required by law or regulation to do so. AMO will notify the Customer as soon as possible of any such modification.
MATTERS OUTSIDE EITHER PARTY’S CONTROL
14.1 If any Party is unable to perform any obligation under this Contract because of a matter beyond that Party's reasonable control (“the Affected Party”), such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, acts of terrorism, industrial disputes (whether or not involving that Party's employees) or acts of local or central Government or other competent authorities, or events beyond the reasonable control of that Party's suppliers, the Affected Party shall have no liability to the other for that failure to perform.
14.2 AMO will have no liability to the Customer for failure to supply the Services in the event of AMO being prevented by restrictions of a legal or regulatory nature from supplying the Services.
14.3 If any of the events detailed in this clause continue unbroken for more than 3 months the other Party may serve notice on the Affected Party terminating this Contract without liability by reason of such termination.
DOMICILIUM
15.1 AMO chooses as its domicilium citandi et executandi for all purposes under this Contract, whether in respect of court process, notice, or other documents or communication of whatsoever nature, Block D, Hilltops Office Park, 73 Villiers Drive, Clarendon, Pietermaritzburg, 3201, KwaZulu-Natal, South Africa.
15.2 The Customer chooses as its domicilium citandi et executandi for all purposes under this Contract, whether in respect of court process, notice, or other documents or communication of whatsoever nature, the address of the Customer Representative nominated on the Order Form.
ASSIGNMENT
Neither Party shall transfer or assign any rights or obligations here written consent of the other Party.
ENTIRE CONTRACT
17.1 This Contract contains the whole Contract between the Parties and supersedes all understandings or arrangements, both oral and written, between them relating to the subject matter of this Contract.
17.2 The Parties acknowledge and agree that:
a) they have not been induced to enter into this Contract by any representation, warranty or other assurance not expressly incorporated into it; and
b) in connection with this Contract their only rights and remedies in relation to any representation, warranty or other assurance are for breach of this Contract and that all other rights and remedies are excluded.
17.3 The provisions of clauses 17.1 and 17.2 shall not alter the Party’s rights or remedies in relation to any fraud or fraudulent misrepresentation.
CHANGES TO THIS CONTRACT
18.1 Subject to Clause 4, if either Party wishes to vary this Contract it must notify the other Party in writing, detailing the proposed change and the reason for it.
18.2 Within 14 days of receipt of a proposed change, the receiving Party will notify the other Party in writing whether the proposed change is feasible and the likely financial, contractual, technical and other effects of the proposed change.
18.3 Within 14 days of notification of the effects of a proposed change the receiving Party will advise the other Party whether it wishes this Contract to be amended to incorporate the change.
18.4 Where the Parties agree a change to this Contract it will be recorded in writing and will form part of this Contract when signed by both Parties.
SEVERABILITY
If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of its provisions will continue in full force and effect as if this Contract had been executed with the invalid, illegal or unenforceable provision omitted.
NOTICES
20.1 AMO notices under this Contract shall be sent in writing to the relevant Customer contact specified in the Order Form, and may be delivered by hand or by courier, or sent by post and, if posted shall be deemed to have been received 10 Working Days following the date of posting.
20.2 Customer notices under this Contract shall be sent in writing to Mr. David Larsen of AMO, and may be delivered by hand or by courier, or sent by post and, if posted shall be deemed to have been received 10 Working Days following the date of posting.
20.3 For the avoidance of doubt this clause shall not apply to the reporting of customer service issues by the Customer in relation to the Services.
LAW
This Contract shall be governed by the laws of South Africa and all Parties submit to the exclusive jurisdiction of the South African courts.
DEFINITIONS
The following terms shall have the meaning set out below in relation to any part of the Contract.
“Additional Charges” means Charges that are not specified on the Order Form
“AMO” means the South African registered company Africa Media Online (Pty) Ltd, Registration Number: 2007/004727/07, VAT number 4830211894, which trades as Africa Media Online, which has as its domicilium Block D, Hilltops Office Park, 73 Villiers Drive, Clarendon, Pietermaritzburg, 3201, South Africa, telephone number +27-33-345-9445, cell number +27-82-829-7959, and email address editor@africamediaonline.com
“Customer Representative” means the person(s) nominated by the Customer and notified to AMO in writing who shall be available as the single point of contact for the purpose of communications between AMO and the Customer regarding service-related issues and who shall be authorised to receive and give instructions on behalf of the Customer in relation to such matters;
“Documentation” means all documentation provided by AMO in connection with the relevant AMO Service;
“Intellectual Property Rights” means Patents, trade marks and service marks, present and future copyrights, database rights, and design rights, trade secrets and rights of confidence, and all rights or forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world whether or not any of them is registered and including applications for registration for any of them;
“Media Files” means any digital media files that AMO is holding under any previous agreement(s) with you and any other material, including transparencies, negatives, prints or any electronic material including captions and other rights management information which the Customer deposits with AMO at any time during the term of this Contract;
“Minimum Period” means the initial period during which AMO shall supply and the Customer undertakes to pay for the Service;
"Order Form" means the form used to order the Service;
“Party” means AMO or the Customer;
“Product Sheet” means the product sheet for the Service that defines the features and functionality of the Service;
“Service” means a product or a service supplied by AMO to the Customer;
“Service Charges” means charges of a recurring nature payable for the Service;
MEMAT CLOUD SPECIAL TERMS AND CONDITIONS:
INTRODUCTION
1.1 This document records the terms and conditions upon which AMO licenses MEMAT Cloud to the Customer and hosts the Customer’s MEMAT Cloud system.
1.2 The Minimum Period of this Contract shall be three (3) years.
LICENSING
2.1 The Customer agrees that MEMAT Cloud is a product comprising entirely of features and functionality from MEMAT Cloud and that the licensing rights applicable to MEMAT Cloud apply to MEMAT Cloud.
2.2 The Customer agrees that MEMAT Cloud is defined as the entire system designed by AMO, its employees and Contractors, whereby media content is uploaded, presented, ordered and delivered and where metadata is edited. It therefore includes all the database-enabled functionality of the MEMAT Cloud system but does not include its cosmetic look and feel which remains the sole property of the Customer.
2.3 The Customer agrees that AMO owns exclusive rights to MEMAT Cloud and that it may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited in any way that is not expressly permitted by AMO.
FEATURES AND FUNCTIONALITY
3.1 MEMAT Cloud is used by many clients all with specific needs. While some aspects of a MEMAT Cloud system can be customised to Customers’ needs, particularly its look and feel and custom pages, the functionality of the core digital asset management system, however, is only updated from time to time by way of new releases. Customers agree that while they may submit requests for updates to the digital asset management system, these updates may or may not be incorporated into the system in future releases at the sole discretion of Africa Media Online.
3.2 In the case where a Customer has a specific feature requirement that does not yet exist and needs development, at AMO’s sole discretion, AMO may offer the Customer the option to pay for the development at AMO’s standard hourly rates for such development. In this case AMO would cost the development and quote the Customer. Upon acceptance of the quote the development will be scheduled as a priority in the development queue and the expected date of delivery will be communicated to the Customer.
3.3 Using the MEMAT Cloud Order Form, Customers may select the features and functionality that are currently on offer.
3.4 At any time Customers may elect to upgrade functionality by filling in a new MEMAT Cloud Order Form and selecting the option “Upgrading of Exisiting System.”
3.5 Upgrades of System functionality may take place for a minimum period of one (1) year after which a request may be made to downgrade the functionality.
DEPOSIT
4.1 AMO shall invoice the Customer for the non-refundable Deposit upon signature of this Contract by both Parties.
4.2 The amount payable as the Deposit is specified in the Order Form and the Customer shall pay the Deposit in full prior to AMO undertaking any work relating to this Contract.
4.3 The Customer shall send AMO proof of any direct payment into the AMO bank account. Such proof shall be provided either by fax (+27 (0)86 669 7733) or via electronic mail (memat.support@africamediaonline.com) and shall include reference to the AMO invoice number.
4.4 Upon receipt of full payment of the Deposit, AMO shall create a MEMAT Cloud system for the Customer and propagate it with the functionality relating to the requests made on the Order Form.
CUSTOMER TRAINING
5.1 It is highly recommended that all new MEMAT Cloud Customers receive some training. The Customer may select relevant training on the MEMAT Cloud Order Form.
5.2 MEMAT Cloud 101 training, by default, will be conducted via Skype. Other arrangements can, however, be made in collaboration with AMO.
5.3 Any expenses incurred by AMO in the delivery of training, such as transport costs, will be for the client’s account.
DESIGN OF THE MEMAT Cloud SYSTEM
6.1 AMO offers the design of the Customer’s MEMAT Cloud system as an Optional Service.
6.2 The Customer may nominate AMO to undertake the design of their MEMAT Cloud system by indicating on the Order Form.
6.3 Design refers to the aesthetic look and feel of the web system, and adjustments to the system style sheet. It does not include the adaptation of the core MEMAT Cloud system.
6.4 Fifty (50) percent of the design Charge is payable as part of the Deposit.
6.5 Upon payment of the Deposit AMO shall undertake design of the Customer’s MEMAT Cloud system.
6.6 Within five days of the design brief being agreed between AMO and the Customer, the Customer shall provide AMO with its company logo, branding information and any other information and materials that need to be incorporated within the design.
6.7 The design shall only be applied to the MEMAT Cloud system once the Customer has provided AMO with written approval of the design.
6.8 Once the design of the MEMAT Cloud system has been approved, subsequent modifications and additions shall be charged at AMO’s prevailing hourly rate for web system design.
6.9 If, following instructions from the Customer, AMO has either started to implement the initial design of the MEMAT Cloud system or has started to make changes to the MEMAT Cloud system and the Customer changes their instructions, the Customer shall be liable for the Charges incurred in undertaking that work in good faith, as well as for Charges relating to the new instructions.
6.10 Charges applied under clause 6.9 shall be AMO’s prevailing rate for web design.
6.11 If the Customer chooses to design their own top and bottom includes, they shall be responsible for loading the designs into their MEMAT Cloud system. Any technical support that is required from AMO shall fall under the provisions of clause 13.
DOMAIN NAME PURCHASE AND REGISTRATION
7.1 AMO offers the Customer an Optional Service as detailed in the Order Form whereby it purchases and registers a domain name on behalf of the Customer to be used in conjunction with the Customer’s MEMAT Cloud system.
7.2 The Customer may nominate use of this Optional Service through the Order Form.
7.3 If the Customer’s choice of domain name specified in section D of the Order Form is not available for purchase, AMO shall inform the Customer and the Customer shall nominate another domain name in writing.
7.4 If the Customer wishes to either purchase their own domain name or to use an existing domain name that they own, they must ensure that the associated Domain Name System (DNS) points to the MEMAT Cloud system’s IP address within 14 days of the date of signature of this Contract unless otherwise requested by AMO in writing.
7.5 If the Customer supplies AMO with a domain name for use with its MEMAT Cloud system, they warrant that they own that domain name and agree that AMO is not responsible for any legal action that may ensue as a result of use of that domain name.
IMAGING STANDARDS
8.1 The Customer accepts that in order to ensure that MEMAT Cloud customers have the best opportunity to supply their images to end users for research, publication or broadcast, AMO has established Imaging Standards that match the globally recognised standards that professional users expect from images that they order.
8.2 The Customer may request a copy of the Imaging Standards from AMO or view them on the Africa Media Online web system.
8.3 AMO may from time to time change its Imaging Standards in order to reflect changes in professional expectations.
8.4 AMO fulfills an advisory role and in assisting Customers to build their digital archive at preservation standards. In line with this, AMO may from time to time express an opinion on digital files that are not in conformity to its Imaging Standards and recommend the rejection of files that are not in conformity with the Standards.
8.5 Images that are rejected shall not be placed onto the Customer’s MEMAT Cloud system and AMO shall notify the Customer of such instances.
UPLOADING OF IMAGES
9.1 Within fourteen (14) days of the date of signature of this Contract, the Customer shall provide AMO with digital files for upload onto the Customer’s MEMAT Cloud system. These are known as the Initial Content.
9.2 Subject to the content meeting the Imaging Standards, AMO shall load the Initial Content onto the Customer’s MEMAT Cloud system.
9.3 If any of the Initial Content do not meet the Imaging Standards, clauses 8.4 and 8.5 shall apply.
9.4 Once the Initial Content have been uploaded to the Customer’s MEMAT Cloud system, the Customer may submit additional images for upload. AMO undertakes to upload such images as soon as is reasonably practical subject to clause 8.
MEMAT Cloud STANDARD HOSTING CHARGE
10.1 For the licensing and the hosting of their MEMAT Cloud system and its content the Customer agrees to pay AMO the MEMAT Cloud standard hosting charge specified in the Order Form, an amount which is subject to annual revision to reflect inflation and market trends.
10.2 As detailed in Clause 11 the standard hosting Charge shall increase if the number of Inclusive Images has been exceeded.
10.3 The standard hosting charge shall be paid in full in advance of the billing period that it relates to (e.g. October’s hosting is payable in September).
10.4 Discounts to the standard hosting charge
10.4.1 The following discounts to the standard hosting Charges are reflected in the Order Form:
(a) If the Customer elects to pay annually they shall receive a 10% discount;
(b) If the Customer elects to pay their invoices by Debit Order they shall receive a 5% discount;
10.4.2 The Customer shall lose its 5% discount if at any time and for any reason the Debit Order payment fails.
10.5 The standard hosting charge shall commence when in the opinion of AMO it has created, propagated and tested the Customer’s MEMAT Cloud system, the Customer has been trained and the Initial Content uploaded. If however in the sole opinion of AMO the Customer has caused an unreasonable delay to the completion of the MEMAT Cloud system by failing to carry out its obligations within this Contract, AMO may apply the standard hosting charge thirty (30) days after the date of contract signature.
CONTENT CHARGES
11.1 For each file online there is a charge which is calculated in the Order Form and is calculated thereafter on an annual basis. The Customer shall pay the Charge specified, an amount which is subject to annual revision to reflect inflation and market trends.
PRODUCT UPGRADES
12.1 Upon a product upgrade, the Customer shall pay the Charges relating to the MEMAT Cloud system to which they have been upgraded from the point at which the new MEMAT Cloud system is made available until the expiry or termination of this Contract.
TECHNICAL SUPPORT
13.1 Any time allocated by AMO to technical support in addition to bug fixes shall be charged at AMO’s prevailing technical support rate.
ADDITIONAL FUNCTIONALITY
14.1 Should the Customer elect through the Order Form to use Additional Functionality they agree to pay the associated Charges as specified in the Order Form,
14.2 Additional Functionality Charges are subject to annual revision to reflect inflation and market trends.
PAYMENT
15.1 With effect from the date of signature of this Contract the Customer shall pay the following Charges on the relevant Due Date:
(a) Deposit;
(b) Balance;
(c) Termination Charges; and
(d) any other Charges that may be due under this Contract
without any set-off, deductions or withholding whatsoever (except in the case of manifest error or bona fide dispute) no later than the Due Date for each such Charge.
15.2 Invoicing
At the end of each Billing Period that Charges are applicable, AMO shall send the Customer an invoice specifying:
(a) the Billing Period to which the invoice relates;
(b) Balance Charges due in relation to that Billing Period;
(c) any Termination Charges;
(d) any other Charge payable under this Contract in respect of the Billing Period;
(e) the net amount payable by the Customer; and
(f) the amount of any VAT or other applicable tax payable by the Customer.
15.3 Due Dates
The Due Dates for payment of the Charges shall be as follows:
(a) The Due Date for Deposit Charges is 7 days after the date that both Parties have signed this Contract;
(b) The Due Date for Balance Charges is 14 days following the last day of the Billing Period in which such a Charge becomes payable;
(c) The Due Date for Termination Charges is fourteen (14) days after the Termination Date; and
(d) The Due Date for any other Charge payable under this Contract is 14 days following the last day of the Billing Period in which such a Charge becomes payable.
15.4 The Customer shall send AMO proof of any direct payments into the AMO bank account. Such proof shall be provided electronic mail (accounts@africamediaonline.com) and shall include reference to the AMO invoice number.
15.5 Payment by Debit Order
a. If the Customer elects to pay by Debit Order and to receive the associated discount, the choice must be specified in the Order Form.
b. If the Customer elects to pay by Debit Order, AMO shall be entitled to debit the amount specified on the invoice from the Customer’s nominated bank account on the relevant Due Date.
FAILURE TO PAY
18.1 If the Customer fails to pay any of the Charges due under this Contract by the Due Date, AMO has the right to suspend both the Customer’s MEMAT Cloud system and any work in progress relating to this Contract until payment has been made in full.
18.2 If AMO chooses to enforce clause 18.1
(a) AMO shall re-enable the Customer’s MEMAT Cloud system upon receipt of all overdue payments and continue with any work in progress relating to this Contract.
(b) AMO shall apply a re-connection Charge for the re-enabling the Customer’s MEMAT Cloud system equal to the Customer’s MEMAT Cloud standard hosting charge for two (2) months.
TERMINATION BY NOTICE
19.1 The Customer may terminate this Contract following expiry of the Minimum Period by three (1) month’s prior written notice, subject to any termination rights under this Contract.
19.2 AMO may terminate this Contract at any time following expiry of the Minimum Period by one (1) month’s prior written notice, subject to any termination rights under this Contract.
19.3 In the event of termination of this Contract for any reason, the termination shall apply to all of the Services specified in the Order Form.
TERMINATION CHARGES
20.1 If this Contract is terminated prior to the expiry of the Minimum Period by either:
(a) AMO in accordance with Clause 12 of the General Terms and conditions; or
(b) the Customer other than in accordance with Clause 14 or Clause 18 of the General Terms and Conditions,
the Customer shall pay AMO the Termination Charges.
20.2 The Termination Charges shall be 50% of the remaining Balance of this Contract.
CUSTOMER RESPONSIBILITIES
The Customer agrees to bear all costs associated with uploading their Content on to the AMO server including any labour Charges that may be levied by AMO for technical support under clause 13.
DEFINITIONS
The following terms shall have the meaning set out below in relation to any part of this Contract.
“AMO” means The South African registered company Africa Media Online (Pty) Ltd, Registration Number 2007/004727/07, VAT number 4830211894, which trades as Africa Media Online, and which has as its domicilium Block D, Hilltops Office Park, 73 Villiers Drive, Clarendon, Pietermaritzburg, 3201, South Africa, telephone number +27-33-345-9445, cell number +27-82-829-7959, and email address editor@africamediaonline.com (hereinafter referred to as “AMO”)
“Balance” means the total amount due to AMO by the Customer, less the Deposit, and includes regular payments such as the MEMAT Cloud standard hosting charge.
“Billing Period” means each month;
“Charges” means amounts payable by the Customer for the Services that are detailed or referred to in the Order Form, the Product Sheet, the AMO General Terms and Conditions and/or these Special Terms and Conditions;
“Deposit” means a one-off amount payable by the Customer prior to AMO providing MEMAT Cloud;
“Imaging Standards” means the documents written and published by AMO, detailing the specification required of images and their associated metadata in order for them to be suitable for a MEMAT Cloud system;
“MEMAT Cloud” means AMO’s Media Market Technologies online digital media management and sales system designed and developed by AMO, its partners and subsidiaries;
“MEMAT Cloud User Manual” means the latest version of the MEMAT Cloud User Manual;
“Metadata” means information about the image, such as who took the photograph, the location and date that it was taken, a description of the content of the image and copyright information;
“Optional Service” means a feature or function of MEMAT Cloud that is made available to the Customer for an additional Charge;
"Termination Date" means the date on which the Service is terminated by either party in accordance with the terms of this Contract;
“Termination Charges” means a Charge that becomes payable upon termination of the Contract by either party during the Minimum Period.
