Terms and Conditions

1 INTRODUCTION

Thank you for visiting the Upload Media Portal, a website that allows Customers to buy learning materials in the form of digital and physical goods and online learning services.

These Terms are the general terms of the relationship between Upload Media and Customer. These Terms cover the use of the Website. By visiting, signing up on or logging in to the Website, each Customer accepts and agrees to these Terms. These Terms also cover any transactions (including any transaction carried out electronically) where Upload Media provides Goods or Services to Customer. The commercial terms of any transaction between Upload Media and Customer will be contained in an Order that will incorporate these Terms. The Order will prevail if there is a conflict of meaning. Nothing in these Terms obligates either party to enter into any orders. Please read this document carefully before deciding to use our Services as it highlights inherent risks in using our Services. By completing the registration process, you acknowledge that you have read, understood, accepted, and agreed to be bound by these Terms.

2 Definitions and interpretation

Definitions. In the Agreement:

Additional Fee means a charge you must pay us for the supply of any Services outside of an Order, which charge must be made at our then current standard prices and rates, unless otherwise agreed in Writing between the parties;

Agreement means these Terms and any Orders we enter into;

Authorised User means (i) you or (ii) a user in your employ where you are a juristic person, who has been assigned Credentials;

Content means any content added to a website. Content includes photos, images, audio files, video files, text, files, listings, postings, messages, or other materials;

Credentials mean a unique UserID and password that has been assigned to an Authorised User;

Customer or you means any person who visits, signs up to or logs into the Website, or concludes an Order;

Data means any data that you provide to us, including transactional information and Personal Information;

Effective Date means in respect of each Order, the date from which the parties rights and obligations under this Agreement will commence, as stipulated in each Order, in the absence of which it will be the date the Order is accepted by us;

EULA means end user license agreement;

Goods mean physical or digital goods that we provide under Orders;

Order means a Goods or Services Order agreed to and signed by both the parties describing the specific Goods or Services to be provided by Upload Media to Customer;

Personal Information means personal information as defined by the Protection of Personal Information Bill as dealt with in our Privacy Policy;

Playlist means a collection of Content in the form of digital goods or services delivered at one point in time;

Services means any Services available from the Website that Upload Media provides to Customer as specified in the features matrix [insert link], under Orders;

Service Levels means the levels according to which Upload Media will provide each Service as agreed by the parties;

Sign means the handwritten signature or advanced electronic signature of the duly authorised representative of a party;

Subscription means a series of collections of Content in the form of digital goods or services delivered at regular intervals over a period of time;

Terms means these terms, consisting of these Terms and Conditions, and any other relevant specific terms applicable to a specific section of the Website or any specific Goods or Services, notices and policies agreed to between the parties;

Third Party Software means software that is owned by third parties and includes open source software that you have been authorised to use to provide the Services or sub-license;

the Website means the Upload Media Portal available at www.upload-media.com, a website that allows learners to buy learning materials in the form of digital goods, physical goods, and online services, including:

all Content, Goods or Services, applications or apps available through the Website; and any other marketing material of Upload Media;
Upload Media or we or us or our means Upload-Media CC (Registration number: 2011/039324/23);

Writing means any mode of reproducing information or data in physical form (includes hard copy printouts, handwritten documents, and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but excludes information or data in the form of email.

Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within this Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in these Terms, when any number of days is prescribed in these Terms the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.

3 Duration

These Terms commence when accepted (usually on registration) and continue until terminated.

4 Registration

You must register to use the Services. We reserve the right not to enter into the Agreement with you (reasons could include for example that you have previously been suspended from using our Services or you pose an unacceptable level of risk for us).

5 Security

5.1 Credentials. When registering, you will be required to select your Credentials which will enable you to sign into your account on our Website. If you are a juristic person, you will have to designate a specific Authorised User. Only you may use your Credentials. We do not permit multiple people to share a login.

5.2 Choice of Password. You must choose a password that is at least 10 characters in length which is difficult to guess. For example, don’t use words found in a dictionary, derivatives of your UserID and common character sequences such as “123456”. Also don't use personal details such as your spouse’s name, car registration number, ID number, passport number and birthday, unless accompanied by additional unrelated characters. The password you choose should also not be any part of speech including, proper names, geographical locations, common acronyms, and slang.

5.3 Access. Only Authorised Users may access the service by using their Credentials.

5.4 Authorised User obligations. Each Authorised User agrees:

to keep their Credentials secure;
not to disclose their Credentials to any other person;
not to provide access to any person;
to secure all data under their control;
not to interfere with the functionality or proper working of the service;
not to introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into the service;
not use the service for direct marketing, spamming, unsolicited communications, or other advertising or marketing activities prohibited by applicable law;
to immediately notify us in Writing of any lost Credentials; and
to notify us of any known breach of our Privacy Policy.
we are unable to verify any information you provide to us; or
we reasonably believe that your activities pose a significant credit or fraud risk to us or our other Customers, or may cause financial loss or legal liability for us, our other Customers, or you

5.5 Your instructions. Each Authorised User is responsible and liable for activities that occur under their account. You authorise us to act on any instruction given by you, even if it transpires that someone else has defrauded both of us, unless you have notified us in Writing prior to you acting on a fraudulent instruction. We are not liable for any loss or damage suffered by you attributable to your failure to maintain the confidentiality of your Credentials.

5.6 Payments. Our security obligations relating to any payment systems we might use are dealt with in our security policy, the terms of which are incorporated here.

5.7 Monitoring security. You consent to us monitoring your use of the Website for security purposes and in order to ensure that the Website is always running and functioning as it should. We reserve the right to take whatever action we deem necessary to preserve the security and reliable operation of our Website. You undertake that you will not do or permit anything to be done which will compromise our security. If:

then we shall be entitled to suspend or terminate your use of the Services.

6 Services

6.1 Grant of license. We grant you a limited, non-exclusive, non-transferrable, revocable license to use the Website in accordance with these Terms and the terms of any third party license agreement. Any person wishing to use the Services contrary to the terms or Third Party Software license agreement must obtain our prior written consent.

6.2 Provision of Services. We will provide the Services to you at the Service Levels.

6.3 Policies. We may establish general polices and limits concerning the use of the Website. We may log off, deactivate, or delete any Customer account that breaches those policies.

6.4 Modification. We may modify, suspend, or discontinue providing the Website or any Goods or Services (with or without notice) and will not be liable.

7 Acceptable use

7.1 Responsibility. You are responsible for your conduct and Content on the Website. You must ensure that your users have the correct permissions to act on the Website.

7.2 Prohibited conduct. Your conduct on the Website must not be unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another's privacy, or harm minors in any way. Do not harass, stalk, degrade, intimidate, or be hateful toward an individual or group of individuals. You may not impersonate any person, falsely state, or otherwise misrepresent your affiliation with any person. Nothing may be false, deceptive, misleading, deceitful, or constitute bait and switch. Do not infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party. Malware or badware is prohibited. Do not negatively affect the ability of any other Customer to use the Website. Do not employ misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Website. You may not impose an unreasonable or disproportionately large load on our infrastructure. Do not attempt to gain unauthorised access to the Website or engage in any activity that disrupts or diminishes the quality of, interferes with the performance of, or impairs the functionality of the Website.

8 Orders

8.1 Invitation to do business. The marketing of the Goods or Services by us is merely an invitation to do business or for you to make an offer to procure Goods or Services. We only conclude a valid and binding Order with you when we accept your offer. Unless proven to the contrary, we only accept an offer relating to Goods, when we ship the Goods. If only part of the Goods relating to an offer are shipped, we only accept that portion of the offer. Unless proven to the contrary, we only accept an offer relating to Services, when we begin providing the Services. We may accept or reject any offer. If we do not accept any offer, then we will refund any monies already paid by you.

8.2 Playlists. We provide each Playlist at a particular point in time and deliver Content to you as soon as reasonably possible after that time. The time will be set out in an Order.

8.3 Subscriptions. We provide each Subscription over a set period and deliver Content to you at set intervals over that period. The period and the intervals will be set out in an Order. Each Subscription will automatically continue after the end of its then current period, on the terms of its Order, for subsequent periods equivalent to its initial period unless it is cancelled on reasonable notice to us.

8.4 Cancel. We may cancel any Order at any time in our absolute discretion. We will refund any monies already paid by you.

8.5 Third party terms and policies. If a third party supplies or delivers any Goods or Services directly to you (including Third Party Software), third party terms or conditions and policies may apply. You are solely responsible for ensuring that you understand and agree to those terms and policies. Please note that there may be provisions in the third party terms that expressly override some of these Terms.

8.6 Time and place. The parties conclude any agreement between them at the time when our duly authorised representative accepts the relevant offer and at the place where we have our head office. We do not need to communicate the acceptance of the offer to you.

8.7 Your warranties. When registering and placing an Order, you represent and warrant that you:

§ are old enough under applicable law to enter into the Agreement;

§ have the legal capacity to conclude legally binding contracts;

§ possess the legal right, full power, and authority to enter into the Agreement;

§ are authorised to use the Credentials required for any account; and

§ will submit true, accurate and correct information to us.

If you are younger than 18 years of age, you warrant that you have the consent of your legal guardian to enter into the Agreement or that you have obtained legal status in another manner.

9 Your Data

9.1 Privacy and protection of Personal Information.

§ Legal Obligations. We are each responsible for complying with our respective obligations under applicable laws governing Personal Information.

§ Use of Personal Information. The manner in which we might use your personal information is dealt with in our Privacy Policy. If you are not satisfied with the level of privacy we provide or disagree with anything in our Privacy Policy, then you are deemed to not accept these Terms and you may not use the Website.

§ Responsible Party. You remain the responsible party for determining the purpose and means of our processing of personal information, including that processing will not place us in breach of any laws.

§ Your trans-border Data flows. You consent to us transferring your personal information across a country border to enable us to comply with our obligations under these Terms. You are solely responsible for determining that any transfer of your personal information across a country border complies with the applicable laws.

§ Indemnity. You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.

9.2 Data responsibility. We are not responsible for any of your Data stored on the Website.

9.3 Location of your Data. We are able to provide the Services in multiple locations that are located in different countries. Your Data will remain in whatever location you place it.

9.4 Preservation of integrity of your Data. Both parties will take reasonable precautions (having regard to the nature of their obligations under the Agreement), to preserve the integrity of your Data and prevent any unauthorised access, corruption or loss of your Data.

9.5 Records. You agree that our records are prima facie evidence of the Services supplied to you.

9.6 Return of Data. On termination of any Order, the provisions of clauses 15.1 and 15.2 will apply.

10 Fees and payment

10.1 Fees and payment. You agree to pay the fees to us. We will invoice the applicable fees in advance or deduct them from your bank account in terms of an existing debit order authorisation, starting from the Effective Date. We may change the fees and payment terms upon 30 calendar days prior written notice to you. You may cancel the Services at anytime on 30 days written notice to us.

10.2 Due dates. Fees must be paid promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the Order.

10.3 Manner of payment. You must make payment in the manner specified in the Order.

10.4 Late payments. Any additional surcharges and penalties specified in an Order will apply to any payment received after the due date. These may include amounts to cover collection fees and additional administration costs. You must pay the surcharges and penalties to us on-demand. We may withhold or remove any Goods or stop the provision of any Services until you have paid all amounts that are due.

10.5 Interest on overdue amounts. Any amount not paid by you on the due date will bear interest from the due date until the date you pay it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of our bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.

10.6 Appropriation. We may appropriate any payment received from you towards the satisfaction of any indebtedness to us under the Agreement.

10.7 Withhold payment. You may not withhold payment of any amount due to us for any reason.

10.8 Certificate. A certificate, signed by an accountant appointed by us of the amount due by you and the date on which it is payable will be conclusive irrefutable proof of the correctness of the certificate’s contents.

10.9 Tax. All fees include value added tax but exclude other taxes levied in any jurisdiction, duty (including stamp duty), tariffs, rates, levies and any other governmental charge or expense payable, which you must pay where applicable in addition to the fees.

10.10 Payment profile. You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.

11 Intellectual property

11.1 Ownership. Except as provided to the contrary in these Terms, all right, title, interest, and ownership (including all rights under all copyright, patent, know-how and other intellectual property) in, to or of the Website are our sole property or will vest in a third party licensor. All moral rights are reserved. Our intellectual property includes our Website and our hardware and software architecture and configuration.

11.2 Your Data. You own all your Data. We do not own your Data or other third party content used as part of the service. All title, ownership rights and intellectual property rights in and to the Content accessed through the service belongs to you or applicable Content owner and may be protected by applicable copyright or other law.

11.3 Your Data license. When you upload your Data to the Website, you give us a worldwide license to use, host and store your Data, solely for purposes of providing the Services.

11.4 Trademarks. Upload Media’s logo and sub-logos, marks, and trade names are the trademarks of Upload Media and no person may use them without permission. Any other trademark or trade name that may appear on the Website or other marketing material of Upload Media is the property of its respective owner.

11.5 Restrictions. Except as expressly permitted under the Agreement, the Website may not be:

§ modified, distributed, or used to make derivative works;

§ rented, leased, loaned, sold or assigned;

§ decompiled, reverse engineered, or copied; or

§ reproduced, transferred, or distributed.

11.6 Prosecution. All violations of proprietary rights or these Terms will be prosecuted to the fullest extent permissible under applicable law.

12 Warranty

12.1 Goods warranty. All Goods will be subject to any warranty indicated in the description of the Goods appearing on the Website, the accompanying documentation, packaging, or EULA. Please review those documents carefully. You will have the same rights against us as we have against our supplier regards defects in the Goods, the intention being that our liability to you will be co-extensive with the right of recourse we have against the supplier. We will provide a copy of any warranty on request. To the extent legally possible, we assign to you the benefit of any supplier warranties that a supplier may give to us regards the Goods. You may not waive any of our common law rights as against the supplier.

12.2 Disclaimer. Use of the Website is at your sole responsibility and risk. The Website is provided on an as is and as available basis. Except for the warranties given in these Terms, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including:

§ any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement; or

§ any warranties regards Third Party Software.

We do not warrant that the Website will meet your requirements or be uninterrupted, be legally effective or complete, timely, secure, error-free or free from infection by malicious software. You should keep up-to-date security software on the systems used to access the Website.

12.3 Exclusion of liability. Despite any warranty given by us, we will not be liable regards any defect arising from:

§ fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow our instructions (whether oral or in Writing), misuse, or alteration or repair of the Goods without our express prior approval; and

§ attachments, features or devices used on the Goods that are not supplied or approved by us in Writing.

13 Indemnity

You agree to indemnify, defend, and hold us (and our subsidiaries, officers, agents, co-branders or other partners, and employees) harmless from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys' fees) arising out of or relating to your use of the Website.

14 Limitation of liability

14.1 Correct faults. We will correct any fault in the Website where possible and as soon as reasonably practical and this is our entire liability regarding any fault in the Website. If this clause is held inapplicable or unenforceable, then the following clause will apply.

14.2 Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, tort, or any other legal theory) in which any legal action may be brought, our maximum liability to you for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by you to us for the Goods or Services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.

14.3 Indirect damages excluded. To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from these Terms.

14.4 Other goods or services. We are not liable for any other website, goods, or service provided by any third party.

15 Suspension of the service

15.1 Without cause. We may modify, suspend, or discontinue providing the Services without cause (with or without notice) and will not be liable.

15.2 Preservation of Data (suspension). In the event that we suspend your access to any Services, we will not take any action to intentionally erase any of your Data in our possession during the period of suspension and the fees will continue to accrue.

16 Termination of the service

16.1 Discontinue the Website. These Terms will automatically terminate if we discontinue the Website.

16.2 Breach. If you:

§ commit a breach of these Terms;

§ repeatedly infringe the copyrights or other rights of others;

§ fail to pay any amount due and fail to remedy the breach within 2 calendar days of having been called on in Writing to do so;

§ effects or attempt to effect a compromise or composition with your creditors; or

§ are provisionally or finally liquidated or placed under judicial management;

you agree that we may, to the extent permitted by applicable law and without prejudice to our rights under these Terms or in law, deactivate or delete your account, terminate access to or use of the Website, claim specific performance of these Terms, or cancel these Terms immediately on written notice and claim damages from you (including, any claim for any fees already due).

17 Effect of Termination

17.1 Data deletion. On the deactivation or deletion of your account:

the Agreement will terminate;
your access rights will immediately cease to exist;
all amounts due to us for Services rendered or Goods ordered prior to termination will become due and payable even if we have not invoiced them;
you may not withhold the amounts for any reason, unless the arbitrator directs otherwise; and
all your Data will be erased,
Negotiation (direct talks to try and agree how to end the dispute); failing which
Mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
Arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
unless we have agreed to render post termination assistance to you in Writing.

17.2 Post termination assistance. Following the termination of the service, you will be entitled to take advantage of any post-termination assistance that we may generally make available with respect to the service (such as data retrieval arrangements). We may endeavour to provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the service, or made available uniquely to you, will depend on your acceptance of and compliance with any Additional Fees and terms that we may impose for such assistance.

18 Resolving disputes

18.1 Notifying each other. There will be a dispute about or from this Agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:

18.2 Negotiation. Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.

18.3 Mediation. If negotiation fails, the parties must refer the dispute to mediation.

18.4 Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision). The parties will agree and appoint one arbitrator. The arbitration will be held in English in Johannesburg.

18.5 Agree otherwise in an Order. The parties may agree otherwise in an Order.

18.6 Periods. The parties may agree in Writing to change the periods for negotiation or mediation.

18.7 Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).

18.8 Severability. This clause is separate and divisible from the rest of this Agreement and remains effective even if this Agreement ends or is invalid.

19 Notices and domicile

19.1 Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the specific terms.

19.2 Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this Agreement.

19.3 Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers in South Africa by Writing to the other party 14 days before the change.

19.4 Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.

19.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.

20 Force Majeure

20.1 Parties not liable. No party will be responsible for any breach of this Agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.

20.2 Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this Agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.

20.3 Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this Agreement for more than 60 days because of force majeure, the other party may cancel this Agreement by written notice.

21 Assignment and subcontracting

21.1 No assignment. You may not delegate your duties under this Agreement or assign your rights under this Agreement, in whole or in part. We may assign this Agreement to any successor or purchaser of our business or some of its assets.

21.2 Exception. Despite this clause, we may cede and assign all rights and obligations under this Agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.

22 General

22.1 Electronic communications. To the fullest extent permitted by law, you consent to receiving all notices and other communications from us electronically. Electronic communications may be posted on our Website or sent to the email address we have on record for you. Please print a copy of each communication and retain it for your records.

22.2 Changes to the Terms. We may change the Terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on the Website or by email. If you do not agree with the change you must stop using the Services. If you continue to use the Services following notification of a change to the Terms, the changed terms will apply to you and you will be deemed to have accepted such terms.

22.3 Changes to any Third Party Software License agreement. We will notify you of any changes to any Third Party Software license terms by placing a notice in a prominent place on the Website, or notifying you by email. The updated Third Party Software license terms will be effective immediately and you will be deemed to have accepted them upon notification.

22.4 Acceptance of changes. If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

22.5 Fact related to the Website. A certificate, signed by an administrator of the Website, of any fact related to the Website (including the version of the Terms that governs a particular Order or dispute and what Content was published or functionality was available on the Website at a specific point in time) will be conclusive irrefutable proof of the correctness of the certificate’s contents.

22.6 Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.

22.7 Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this Agreement if it does not change its purpose.

22.8 Governing Law. South African law governs this Agreement.

22.9 Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with these Terms, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.

22.10 Non-exclusivity. We may provide any Goods or Services to any other person or entity.

22.11 Costs. Each party is responsible for its own costs of drafting and negotiating this Agreement.