GENERAL TERMS AND CONDITIONS
Agreement means the "Mediabank services end user agreement" including its appendixes and these general terms and conditions
Content means any data and files uploaded to, stored in or downloaded from Mediabank, including but not limited to audio and video files in any format.
1. Grant of license
Subject to the terms of the Agreement, Customer is granted a non-exclusive, time limited and non-transferable license to use the Mediabank Service specified in Appendix 1. The license is valid throughout the term of the Agreement.
Customer's right to use MediaBank Service is solely granted to Customer's legal entity and may only be used by authorized personnel (employed or engaged in Customer's legal entity) according to the terms of the Agreement. It is the responsibility of Customer to define access permission roles, keep log-in and Customer account information secret and to ensure that no unauthorized party obtains such information or access to the Mediabank Service.
2. Use of the Mediabank Service
It is understood by Customer that the Mediabank Service solely is delivered as a content storage and processing service and that it may not be used for any other purposes. Customer is not entitled to license, sell, resell, rent or otherwise make available the Mediabank Service to third parties or to re-wrap or incorporate the Mediabank Service with its own products or services offered to third parties. Changes and modifications of the Mediabank and the Mediabank Service, including but not limited to changes to interfaces, designs, programs and computer code on any level may only be executed in agreement with NEP Media Services AS and may only be carried out by NEP Media Services AS unless otherwise agreed. The same applies to any third party API and system integrations.
2. No assignment of property or rights
Nothing in this Agreement shall operate as an assignment to the other party of any property or rights (whether owned or leased) including but not limited to Content, hardware and/or software used as part of the Mediabank Service hereunder, computer programs, components and code in any form, interfaces , system workflows, databases, copyright, designs, trademarks or other proprietary and intellectual rights owned by or licensed by a party and the parties shall retain ownership and other interest in any such property without being affected by this Agreement.
3. User and organization access and security
In the event Customer information has been, or is suspected to be obtained or otherwise possessed by an unauthorized party, Customer shall promptly notify NEP Media Services AS. NEP Media Services AS may in such event suspend or close Customer's account and/or initiate other steps to prevent or stop any unauthorized access. This will also apply if NEP Media Services AS uncovers or suspects any unauthorized access.
The Mediabank Service will be made available for Customer promptly after the agreement has entered into effect. Unless otherwise notified by NEP Media Services AS Customer must allow at least 2-4 working days before the customer registration process is completed. Customer's business contact will be notified by e-mail when the registration is complete. NEP Media Services AS reserves the right to require Customer to provide additional information or verification's in connection with the customer registration process and Customer undertakes to comply with such requests. NEP Media Services AS reserves the right to refuse registration of Customer, without cause and at its sole discretion, at any stage, in which event Customer will be notified by NEP Media Services AS in writing.
4. Upload of Content, Content re-wrap and distribution
Content may be uploaded to Mediabank in media formats defined by NEP Media Services AS. Mediabank enables distribution and re-wrap of Content according to specifications provided by registered recipients.
The upload, re-wrap and distribution time-frame (from upload to end user receipt) will always depend on the senders' and recipients' available bandwidth, infrastructure, hardware, software and technical environment. Signal transport downtime, delays, interruptions, reduced transport capacity or Content quality on both sides of Mediabank (upload, preview and download) may occur. Customer should always include a sufficient amount of time in order to ensure compliance with registered recipients' requirements, deadlines, third party agreements etc., and NEP Media Services AS may not be held liable for any direct or indirect loss or other consequences due to signal transport downtime, delays, interruptions, reduced transport capacity or Content quality.
NEP Media Services AS will not change, modify or in other ways process Content stored in Mediabank. NEP Media Services AS will not make or remain copies of Content for other purposes than to fulfill its obligations under the Agreement.
Customer is responsible to ensure that any Content uploaded to MediaBank is legal (in any relevant jurisdiction) and not used or treated in violation of third party rights. Customer is in every aspect solely responsible for any Content uploaded, stored, downloaded or otherwise used in connection with Mediabank. NEP Media Services AS will, without notice, delete and/or if so requested by a competent court or public body according to law, deliver Content to authorities should any of the above conditions apply.
It is the obligation of Customer to ensure that Content subject to upload satisfies technical and quality requirements in all aspects, including audio/video levels and formats and that the Mediabank Service is used in a correct manner. Content not meeting the requirements will normally be rejected by Mediabank in the verification process following the upload. Customer will normally be notified of the rejection and if applicable, the supposed cause. Customer is responsible to ensure that any Content uploaded to and stored in Mediabank is free from viruses, malware and any other harmful or unwanted programs of any kind. Customer is further responsible to keep any Content backed up in a secure location in order to prevent permanent loss of Content.
6. Storage capacity
The default online storage space included in the service charge is limited according to the specifications of each Mediabank Service category. Customer is responsible to manage, allocate, delete and administer its own Content library. There are no restrictions on the available storage space available for the Customer. Use of storage space exceeding included storage will however be charged separately. Customer will be charged monthly based on actual use of storage space.
7. Term and termination
Until terminated pursuant to this Agreement, the Mediabank Service is provided for an infinite period of time and Customer shall pay for NEP Media Services AS's deliveries based on use in accordance with the service rates in effect at the time of Customer's use of the Mediabank Service.
NEP Media Services AS reserves the right to immediately and without further notice, either suspend Customer's access to or close Customer's account and/or terminate the agreement, as deemed appropriate by NEP Media Services AS, in the following events:
- If Customer is declared bankrupt, enters into debt composition proceedings or liquidation, has become insolvent or ceases to do business (whether voluntarily or not).
- If Customer commits a breach of the Agreement or the Invoice & Payment terms, and fails to mend the breach within seven (7) days following the occurrence of the breach. If the breach is not capable of remedy or material, the account may be suspended or terminated by NEP Media Services AS immediately.
- In the event of a change of control in Customer, including but not limited to in the event of merger, de-merger, acquisition or sale of shares in Customer or substance, and NEP Media Services AS, at its own discretion, considers the change of control to have an adverse effect on the business of NEP Media Services AS.
- If the non or limited performance of the Mediabank Service is caused by an event or circumstance beyond NEP Media Services AS's reasonable control.
Either party may terminate the agreement without cause by three months written notice to the other party (date to date).
When the agreement is terminated – irrespective of cause – Customer's Content will remain available during the notice period of three months, or if the Agreement has been terminated with immediate effect, for a period of one month ("Phase-out Period"). All Content will be deleted permanently on the calendar day following the expiry date of the Phase-Out Period. Upon Customer's request, NEP Media Services AS will provide reasonable assistance to Customer on a time and material basis in transferring stored Content.
If Customer is in breach of the Agreement, including Customer's failure to pay in due time, NEP Media Services AS has right to retain any stored Content until payment and/or compensation for the breach has been made in full (inclusive of any late payment penalties, interests, court fees, legal costs and similar).
8. Maintenance – scheduled and unscheduled unavailability
The Mediabank Service may be unavailable from time to time in connection with upgrades, updates or other maintenance work and also on certain public holidays. NEP Media Services AS will seek to minimize any such unavailability and shall in such events not be deemed to be in breach of the Agreement.
NEP Media Services AS may, upon Customer's request, provide Mediabank Service training against payment on a time and material basis.
Unless the parties have agreed specific support routines with service levels, Customer will be offered support by contacting NEP Media Services AS on ordinary weekdays between 09.00 – 17.00 hours by phone: +47 23 68 80 25 or e-mail [email protected] If contacted by e-mail the inquiry will be submitted in NEP Media Services AS`s separate support ticketing system and thereafter handled by NEP Media Services AS`s support personnel.
11. Limitations of liability
Customer is aware that the Mediabank Service partly relies on and uses third party cloud services and signal transmission carriers and that NEP Media Services AS has no control or influence over such third party suppliers.
THE MEDIABANK SERVICE, INCLUDING ITS SOFTWARE, STORAGE, AND CUSTOMER INTERFACE IS PROVIDED "AS IS" WITH NO GUARANTEES WHATSOEVER. ALTHOUGH IT IS THE AIM OF NEP Media Services AS TO PROVIDE MARKET STANDARD SERVICES, ANY USE OF THE MEDIABANK SERVICE SHALL BE AT CUSTOMERS' OWN RISK AND RESPONSIBILITY. CUSTOMER IS THEREFORE ADVISED TO TAKE NECESSARY PRECAUTIONS SUCH AS KEEPING BACK-UP OF CONTENT TO AVOID PERMANENT LOSS AND TO ALLOCATE SUFFICIENT TIME TO ENSURE COMPLIANCE WITH DEADLINES AND AGREEMENTS WITH THIRD PARTIES ETC. NEP Media Services AS WILL HAVE NO RESPONSIBILITY FOR LOSS OR CORRUPTION OF CONTENT, DATA OR OTHER LOSS OR DAMAGE, DIRECT OR CONSEQUENTIAL, DERIVING FROM THE USE OR ATTEMPTED USE OF THE MEDIABANK SERVICE INCLUDING ANY UNAUTHORIZED OR INCORRECT ACCESS OR USE.
None of NEP Media Services AS, its officers, directors, employees, hired personnel, partners, licencors or contractors shall under any circumstance be liable, either in contract or in tort, for any direct or indirect or consequential loss or damage, lost or corrupted Content or data, lost profits, lost revenue, expenses, lost or limited business opportunities and claims from Customer's contractors or breach of the Agreement arising out of the implementation of the Agreement and provision of the Mediabank Service.
NEP Media Services AS's sole liability for any breach of the Agreement shall be the re-delivery of the particular part of the Mediabank Service that has failed as a consequence of the breach. To the extent any exclusions or limitations of liability are prohibited by applicable law; any claim against NEP Media Services AS, either in contract or in tort shall in all circumstances be limited to an amount corresponding to one month's service charge under the Agreement, subject to the limitations of the Agreement being valid and enforceable and provided that the loss has been caused by NEP Media Services AS's gross negligence or willful misconduct.
12. Force Majeure
Should an event beyond any of the parties’ control occur, making it impossible or disproportionately burdening to fulfill any of their obligations under this Agreement ("Force Majeure"), the other party shall be notified at the earliest convenience.
Examples of such Force Majeure situations are (without limitation) war, natural disasters, acts of authority, terrorism, boycotts, strikes, lock-outs, fires, explosions and similar unforeseeable circumstances. The affected party’s obligations will be suspended as long as the situation prevails, but only to the extent the situation is relevant to the obligations under the agreement. The other party’s corresponding obligations shall be suspended for the same period of time. If the Force Majeure situation with a high degree of certainty is expected to endure more than thirty (30) days, either party shall have the right to terminate the Agreement by 10 day's written notice to the other party.
The parties hereby undertake that they shall keep secret and treat as confidential all business sensitive and secret documents and information relating to and deriving out of this Agreement, including but not limited to, the business affairs and business secrets of the other party, pricing policies, marketing plans and other business strategic information (“Confidential Information”).
Neither party shall, without the other party's prior written consent, disclose Confidential Information in any form to third parties. Confidential Information may only be used by either party to the extent necessary to exercise its rights and obligations under this Agreement.
Nothing in this Agreement shall prevent any of the parties to use or disclose information which: (a) is generally known, or becomes a matter of general knowledge otherwise than through a breach; (b) is demonstrably developed at any time by the receiving party without any connection with the information received hereunder; (c) is rightfully obtained at any time by the receiving party from a third party without restrictions in respect of disclosure or use; or (d) is required by law, regulation, or order of a court of competent jurisdiction.
Customer is not entitled to assign the Agreement or any of its rights or obligations to any third party without NEP Media Services AS's prior written consent.
15. Amendments of the Agreement
NEP Media Services AS may from time to time amend the Agreement including these general terms and conditions. Customer will be notified in advance of any amendments and shall have the right to terminate the Agreement with one month's written notice to NEP Media Services AS if Customer should disagree with the amended terms.
16. Governing law and dispute resolution
This Agreement shall be governed by and construed in accordance with the laws of Norway. Any legal action or proceeding between the parties shall be brought exclusively before the courts of Oslo, Norway.
APPENDIX 3 – INVOICE AND PAYMENT TERMS
MediaBank Service prices
Content storage, upload, re-wrap and distribution is subject to item pricing according to the current official Mediabank pricelist, whereby Customer will be charged for each process according to the prices stated therein. Unless otherwise stated, all prices are stated in Euros (€) exclusive of VAT.
All prices are subject to annual unnotified adjustments according to the increase in the "Konsumprisindeksen" (the Norwegian Consumer Price Index – "KPI"). Price adjustments are made on basis of the development in the KPI from the Agreement date and the official noted KPI for December each year. Price adjustments are effective as from January each year.
Prices are stated exclusive of taxes, duties or VAT - value added tax (Taxes). Prevailing Taxes, duties and VAT will be added to the prices stated in Customer's invoice.
Invoices will be issued and sent to Customer's business contact via e-mail or via ordinary mail approximately once per month containing the accumulated charge for the Mediabank Services. NEP Media Services AS reserves the right to adjust or correct previously invoiced amounts in subsequent invoices.
Unless otherwise stated in the invoice, the invoiced amount falls due 30 days calculated from the invoice date. Unless otherwise stated in the invoice, invoiced amounts will be calculated in NOK.
Any invoiced amount unpaid by the due date is charged with a late payment interest pursuant to the Norwegian act on late payments dated 17 December 1976 no. 100. Late payment interest will accrue until the unpaid and due amount has been paid in full.
NEP Media Services AS reserves the right to suspend Customer's Mediabank Service account if Customer fails to provide payment by more than 7 days calculated from the due date.
If Customer reasonably disputes an invoiced amount, it must anyhow pay the undisputed amount by the due date, and promptly notify NEP Media Services AS of the dispute in writing. The notification must, in order to be considered, at least contain the invoice number, the amount disputed and the reason for the dispute. Customer loses its right to dispute an invoiced amount if the written notice of the dispute is received by NEP Media Services AS later than 90 days calculated from the due date, in which event the invoiced amount shall be regarded as accepted by Customer.