Terms and Conditions
Terms and Conditions
Imagimedia and the Client acknowledge that the success of the Project is the joint responsibility of both parties. Failure by either party to fulfill its obligations may impact the other’s ability to meet its obligations on the Project;
Imagimedia and the Client recognise they must both use all reasonable endeavours to meet agreed deadlines;
Imagimedia may appoint sub-contractors to assist in meeting its obligations on the Project;
Imagimedia will agree with the Client its needs for appropriate involvement of Client personnel, reasonable working accommodation, communications and access to equipment.
Scope of project
The scope of the Project is described in the Memorandum (“the Invoice”) of Agreement. Although elements of the scope may necessarily change over time, Imagimedia will have no obligations to proceed with any change proposed by the Client until the cost and schedule impact has been agreed. Imagimedia will develop the cost and schedule impact of proposed changes within a reasonable period of receiving instructions from the Client. If the project is reliant on Client facilities, personnel or skills, Imagimedia reserves the right to treat absences of Client facilities, personnel or skills as a proposed change in scope even if caused by circumstances beyond the Client’s control.
During the Project the Client is likely to have access to confidential information of Imagimedia, including (but not limited to) Imagimedia’s past, present and future research, development, business activities, products, services and technical knowledge. Similarly, Imagimedia is likely to have access to confidential information of the Client.
Accordingly, each party (“the Recipient”) agrees and undertakes in favour of the other party (“the Protected Party”) that the confidential information of the Protected Party may be used by the recipient only in connection with the Project and will be kept in the strictest confidence and will not be disclosed to any third party except with the prior signed written approval of the Protected Party or pursuant to an order, directive or subpoena issued by any competent court or authority. The Client agrees that the Memorandum of Agreement (including its annexes) constitutes confidential information of Imagimedia as contemplated in this paragraph.
Intellectual property rights
Imagimedia uses an in house developed CMS as the basis for any websites and the intellectual property of all such code is retained by Imagimedia.
Imagimedia will retain the intellectual property rights and copyright of any work performed by its personnel, save for all such work as is paid for wholly and exclusively by the Client, and may retain such copies of outputs and deliverables as are necessary for its reference purposes.
Imagimedia may re-use concepts and other outputs of the Project provided confidential information of the Client is safeguarded.
Remedies and liabilities
Imagimedia’s objective is to work with the Client to achieve the business objectives of the Project. If, in doing so, the Client suffers damages resulting from an act or omission of a Imagimedia director or employee, Imagimedia would recognise this as its responsibility, up to but not exceeding the amount of fees received from the Client for that phase of work.
The Client agrees that Imagimedia shall be given a reasonable opportunity to remedy any failure or shortcoming in the delivery of the services / deliverables to the Client notified to Imagimedia within six months of delivery.
Imagimedia undertakes, at its expense, to use all reasonable efforts to implement such remedy as soon as reasonably possible after any such failure is reported to Imagimedia. Subject to the financial limits set forth above, the Client agrees that this provision is the exclusive remedy available to the Client in the event of any failure or shortcoming in the project.
Imagimedia shall not be liable for any indirect or consequential loss or damage of any kind under any circumstances including negligence (whether arising under contract, common law or otherwise) including but not limited to loss of profits, loss or corruption of data, loss of operation time or loss of contracts, whether caused by its directors, employees, agents or others for whom in law it may be liable.
Imagimedia’s liability under paragraphs 9 and 10 is in lieu of and to the exclusion of any warranty or term of any kind relating to the condition, performance, merchantability or fitness for purpose of the services or any deliverables.
Infringement and copyright
Imagimedia will defend, at its expense, a third party claim that any service or deliverable Imagimedia has provided infringes a South African copyright. In the event that any damages are finally awarded against the Client in respect of such a claim, these will be paid by Imagimedia. This indemnity will not apply if the infringement is the result of the Client modifying, misusing or providing deliverables or services to a third party or failure to use enhancements supplied by Imagimedia or information, documents, facilities or products which are supplied by the Client for the purposes of the Project. This indemnity constitutes the Client’s sole and exclusive remedy and the Imagimedia’s entire liability with respect to any deliverable or service infringing any third party rights.
Imagimedia will not be liable for any delay in performing or failure to perform its obligations if such failure or delay is as a result of causes outside its reasonable control.
The Client agrees, if so requested by Imagimedia, to allow representatives of any organisation responsible for certifying standards of work access to the Client’s premises and to co-operate, so far as is reasonable, with such representatives.
Imagimedia believes that a planned rotation of its personnel is in the Client’s best interests, both in terms of quality and cost management. Imagimedia reserves the right to meet its responsibilities through the allocation of appropriate available skilled personnel without a guarantee that specific individuals will be assigned.
In the event of the resignation of a Imagimedia or Client project team member who is a key resource on the Project, the respective employer will endeavour to replace that person within a reasonable time period or otherwise agree to a reallocation of resources or scope change to the Project.
Neither party shall for the duration of the Project, and for one year thereafter, employ any person engaged by the other in connection with the Project.
Termination of agreement
The Client may terminate or restrict Imagimedia’s services at any time in which case the Client will be liable for all work done at Imagimedia’s standard billing rates which may be higher than proposed rates contracted for the Project, since proposed rates will have included assumptions on the volume of work and levels of staffing at various stages. The Client will also be liable for any cancellation charges incurred by Imagimedia. Imagimedia may terminate its participation in the project if its fees remain unpaid for fifteen (15) days or if the Client commits significant or repeated breach of agreement.
In the event that any proposed change of scope is as a result of circumstances beyond the Client’s control and the cost implication of the change of scope is, in the opinion of the Client, material, the Client may forthwith terminate or restrict Imagimedia’s services in which event the Client will be liable for all work done at the proposed rates contracted for the project.
The economics of Imagimedia’s proposal are based on timeous payment of invoices to balance expenditures on salaries and office costs. As a consequence, all invoices for fees and expenses will be payable monthly on presentation or as scheduled in the Agreement. Any sum which remains outstanding beyond ten (10) days will bear interest from the date of presentation until paid in full. This interest will be at the then current Prime Rate compounded monthly.
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