1. DEFINITIONS AND INTERPRETATION
In this Agreement, the words hereunder will have the meanings assigned to them
means these Standard Terms and Conditions and any Application Form, Schedules,
Annexures and attachments hereto;
"Cost Schedule" means Schedule A attached hereto wherein the costs and
service specifications of the Service/s are specified;
"Customer" means the party specified as Customer on the Application
Form to which these Standard Terms and Conditions are attached;
"Customer Support Schedule" means the schedule attached hereto containing
customer support information;
"Effective Date" means, notwithstanding the date of signature of this
Agreement, the date of activation of the service to the Customer, irrespective
of whether or not the Customer uses the Service/s;
"FAX2EMAIL" means FAX2EMAIL (Pty) Limited, registration number 2003/014451/07;
"Initial Period" means the initial contract term of the Service/s, as
per physical agreement signed with Customer;
"Proprietary Information" means any and all trade secrets and data/information
of a proprietary and/or confidential nature, including data/information that the
parties should reasonably have known to be proprietary or confidential;
"Service/s" means all the service/s provided by FAX2EMAIL as specified
in the Schedule/s to this Agreement;
"PSTS provider" means the public switched telecommunications services
provider licensed to provide such services in terms of section 36 of the Telecommunications
Act 103 of 1996 as amended;
"VAT" means Value-Added Tax as defined in the Value-Added Tax Act 89
1.2 The clause headings
contained in this Agreement are for reference purposes only and shall not be used
in the interpretation of this Agreement. Words importing any one gender include
the other gender, the singular includes the plural and vice versa, and natural
persons includes juristic entities and vice versa.
COMMENCEMENT AND DURATION
The Agreement shall commence upon the Effective Date of the first Service to be
provided in terms of the Agreement and shall endure throughout the duration period
of the Service/s provided. In the event of a single Service consisting of a number
of components, billing will commence for each respective component of that Service
as and when each component of that Service goes live.
After commencement of contract a 30 (thirty) day notice period will be applicable
to both parties.
3 CHARGES AND
3.1 All Service/s provided
are to be billed as of the Effective Date in respect of each Service.
Customer is responsible for and agrees to pay to FAX2EMAIL all fees for the Service/s
specified in the Cost Schedule/s in South African currency, without deduction
or set-off of any amount of whatsoever nature or for whatsoever reason.
All prices specified in the Cost Schedule exclude:
VAT and any other any taxes and duties including any regulatory surcharge, which
Customer becomes obligated to pay by virtue of this Agreement, and
PSTS provider service fees, for which Customer agrees to make payment directly
to the PSTS provider on such terms as are agreed between the PSTS provider and
Customer, and shall at all times be the responsibility of the Customer.
Invoicing will be processed and delivered in advance, and all invoices for Services
shall be settled monthly within 30 days of the date of invoice, unless stipulated
3.5 In the event of
any dispute arising as to the amount or calculation of any fee or charge to which
FAX2EMAIL is entitled, the dispute shall be referred for determination to FAX2EMAIL's
auditors. They shall act as experts and their decision shall be final and binding
on FAX2EMAIL and Customer. The cost of the determination shall be paid on demand
by the party against whom the determination is made, or as determined by the said
3.6 Any amount falling
due for payment by Customer to FAX2EMAIL in terms of or pursuant to this Agreement
which is not paid on its due date shall bear interest calculated from the due
date for payment thereof until date of payment, at a rate equal to the prime overdraft
rate plus two percent (2%) charged by Absa Bank Limited from time to time, monthly
3.7 FAX2EMAIL shall
be entitled from time to time on 30 (thirty) days prior written notice thereof
to Customer to increase the monthly fees referred to in the Cost Schedule/s, provided
3.7.1 FAX2EMAIL shall
not be entitled to increase the monthly fees during the Initial Period of this
shall not increase the fees unless an increase is levied by Internet Solutions.
In the event of an increase being levied, 30 days written notice will be given
4 CUSTOMER'S OBLIGATIONS
Customer shall comply strictly with all restrictions imposed on computer networks
through which any information and/or data transmitted by Customer passes.
Customer shall not commit nor attempt to commit any act or omission which directly
in any way FAX2EMAIL's technical infrastructure or any part thereof;
Impairs or precludes FAX2EMAIL from being able to provide the Service/s in a reasonable
and businesslike manner;
Constitutes an abuse or malicious misuse of the Service/s;
is calculated to have the abovementioned effect.
In such an event, should
FAX2EMAIL incur expenses to remedy the situation, FAX2EMAIL reserves the right
to charge the Customer the amount necessary to cover FAX2EMAIL's additional expenditure.
Notwithstanding the above, FAX2EMAIL reserves the right to take any other appropriate
action it may deem necessary to remedy the situation.
Customer is prohibited from selling, reselling or otherwise dealing with the Service/s
in any manner whatsoever. Without limitation to the foregoing, any consideration,
which Customer may receive whilst acting in breach of this prohibition, shall
be forfeited to FAX2EMAIL.
Customer is prohibited from allowing any person other than its employees or other
authorised parties, access to the Service/s through any of Customer's equipment,
personnel and/or address.
Customer is prohibited from modifying any equipment utilised by Customer to receive
any of the Service/s, in any way whatsoever, including the changing of any of
the settings of such equipment.
Under no circumstances may Customer resile from this Agreement or withhold or
defer payment or be entitled to a reduction in any charge or have any other right
or remedy against FAX2EMAIL, its servants, its agents or any other persons for
whom it may be liable in law (and in whose favour this provision constitutes a
stipulation alteri) if FAX2EMAIL interrupts the Service to Customer as it would
be entitled to do if Customer is in default of any of its obligations under this
Agreement to FAX2EMAIL or in the circumstances contemplated in clause 6.4 below.
Customer may not at any time use the Service in contravention of any South African
law. In particular, Customer undertakes to familiarize itself and ensure that
it is kept continuously appraised of all South African law in force from time
to time, which has any bearing on the Service and/or its use. Customer acknowledges
that FAX2EMAIL has no obligation to assist Customer in this regard.
5.1 Save as expressly
set out in this Agreement, FAX2EMAIL does not make any representations nor gives
any warranties or guarantees of any nature whatsoever in respect of the Service/s
and all warranties which are implied or residual at common law are hereby expressly
5.2 Without limitation
to the generality of 5.1 above, FAX2EMAIL does not warrant or guarantee that the
information transmitted by or available to Customer by way of the Service/s:
Will be preserved or sustained in its entirety;
Will be delivered to any or all of the intended recipients;
Will be suitable for any purpose;
Will be free of inaccuracies or defects or bugs or viruses of any kind; or
Will be secured against intrusion by unauthorised third parties;
FAX2EMAIL assumes no liability, responsibility or obligations in regard to any
of the exclusions set forth in this clause 5.
EXCLUSION OF LIABILITY
as otherwise expressly provided herein to the contrary, FAX2EMAIL shall not be
liable to Customer or any third party for any loss or damage of whatsoever nature
and/or howsoever arising (including consequential or incidental loss or damage
which shall include but shall not be limited to loss of property or of profit,
business, goodwill, revenue, data or anticipated savings) or for any costs, claims
or demands of any nature whether asserted against FAX2EMAIL or against Customer
by any party, arising directly or indirectly out of the Service/s, their use,
access, withdrawal or suspension or out of any information or materials provided
or not provided, as the case may be.
6.2 Subject to clause 6.1 above, the entire liability of FAX2EMAIL and Customer's
exclusive remedy for damages from any cause related to or arising out of this
Agreement, regardless of the form of action, whether in contract or in delict,
will not exceed the aggregate of the fees and charges paid by Customer under this
Agreement for the period of 30 (thirty) days preceding Customer's written notice
to FAX2EMAIL in respect of such claim.
Customer hereby indemnifies FAX2EMAIL against and holds FAX2EMAIL harmless from
any claim by any third party arising directly or indirectly out of access to or
use of the Service/s or information obtained through the use thereof or in respect
of any matter for which liability of FAX2EMAIL is excluded in terms of clause
6.4 Because of the
need to conduct maintenance, repair and/or improvement work from time to time
on the technical infrastructure by means of which the Services are provided, the
provision of the Services may be suspended from time to time, and all liability
on the part of FAX2EMAIL of any loss or damage (whether direct or consequential)
thereby incurred or for any costs, claims, or demands of any nature arising there
from, is excluded, and the provisions of clause 6.1 above shall apply mutatis
mutandis to such exclusion.
descriptive matter, drawings and other documents, which may be furnished by FAX2EMAIL
to Customer from time to time:
Do not form part of this Agreement and may not be relied upon, unless they are
agreed in writing by both parties hereto to form part of this Agreement;
Shall remain the property of FAX2EMAIL and shall be deemed to have been imparted
by it in trust to Customer for the sole use of Customer. All copyright in such
documents vests in FAX2EMAIL. Such documents shall be returned to FAX2EMAIL on
Subject to the provisions of clause 8.2 to the contrary, if Customer hereto:
Breaches any of the terms or conditions of this Agreement and fails to remedy
such breach or pay such amount, as the case may be, within 7 (seven) days after
the receipt of written notice from FAX2EMAIL;
Commits any act of insolvency;
Endeavours to compromise generally with its creditors or does or causes anything
to be done which may prejudice FAX2EMAIL rights hereunder or at all;
Allows any judgement against it to remain unsettled for more than 10 (ten) days
without taking immediate steps to have it rescinded and successfully prosecuting
the application for rescission to its final end; or
Is placed in liquidation or under judicial management (in either case, whether
provisionally or finally) or, being an individual, his estate is sequestrated
or voluntarily surrendered;
shall have the right, without prejudice to any other right, which it may have
against Customer, to:
or terminate the Services;
Treat as immediately due and payable all outstanding amounts which would otherwise
become due and payable over the unexpired period of the Agreement, and to claim
such amounts as well as any other amounts in arrears including interest and to
cease performance of its obligations hereunder as well as under any other contract
with the Customer until Customer has remedied the breach; and/or
Cancel this Agreement;
event without prejudice to FAX2EMAIL's right to claim damages.
Customer shall be liable for all costs incurred by FAX2EMAIL in the recovery of
any amounts or the enforcement of any rights which it has hereunder, including
collection charges and costs on an attorney and own client scale whether incurred
prior to or during the institution of legal proceedings or if judgement has been
granted, in connection with the satisfaction or enforcement of such judgement.
Subject to what is set out in Clause 8.1.1 above, FAX2EMAIL shall be entitled
to suspend the provision of the Services where Customer breaches any provision
of this Agreement or where any payment to FAX2EMAIL is overdue by more than 7
anything set out in Clause 10 below, all intellectual property (including, without
limitation, copyright, trade marks, designs and patents) relating to or used in
connection with the Service/s provided under this Agreement shall belong to FAX2EMAIL.
Customer undertakes that it shall at no time, have any right, title or interest
in the intellectual property and agrees that it shall not (or permit any third
party to) reverse engineer, decompile, modify or tamper with the equipment or
software owned by FAX2EMAIL, or any of its third party suppliers.
Customer warrants that it shall not use the Service/s to produce, host or present
any content in contravention of any person's intellectual property rights, and
in particular warrants that it shall recognise, acknowledge and use any content
in accordance with any third party's intellectual property rights. Customer furthermore
warrants that it has received all necessary permissions to make use of any intellectual
property relating to 3rd parties.
PROTECTION OF PROPRIETARY INFORMATION
Each party will keep in confidence and protect Proprietary Information from disclosure
to third parties and restrict its use to that which is provided for in this Agreement.
Either party acknowledges that unauthorised disclosure or use of Proprietary Information
may cause substantial economic loss. All printed materials, containing Proprietary
Information will be marked with "Proprietary" or "Confidential",
or in a manner, which gives notice of its proprietary nature. Proprietary Information
shall not be copied, in whole or in part, except when essential for correcting,
generating or modifying Proprietary Information for either party's authorised
use. Each such copy, including its storage media, will be marked with all notices,
which appear on the original.
Each party shall ensure that its employees comply with its obligations under this
10.3 This section
10 shall survive termination or cancellation of this Agreement.
This Agreement does not transfer to either party title to any intellectual property
contained in any Proprietary Information of the other party.
Customer shall not be
entitled to cede or assign any rights and/or obligations, which it may have in
terms of this Agreement to any third party unless, consented to in writing by
signatory to this Agreement, as the authorised representative of the Customer,
hereby binds himself/herself to FAX2EMAIL as personal surety and as co-principle
debtor in solidum with Customer for the due, punctual and proper fulfilment and
performance by Customer of all its obligations in terms of this Agreement. The
aforementioned signatory hereby renounces all benefits arising from the legal
exceptions of non numeratae pecuniae, non causa debiti, errore calculi and beneficio
excussionus et divisionis, with the force and effect of which he/she hereby declares
himself/herself to be fully acquainted.
shall not be liable for non-performance under this Agreement to the extent to
which the non-performance is caused by events or conditions beyond the control
of FAX2EMAIL, provided that FAX2EMAIL makes all reasonable efforts to perform.
It is expressly recorded that for purposes of this clause the following shall
be considered circumstances beyond the control of FAX2EMAIL and the force majeure
provisions shall apply: -
A PSTS provider fault that affects the Service/s; and/or
The non-performance, inability to perform or delay in performance by the PSTS
provider relating to the provisioning of equipment, services and/or facilities
to FAX2EMAIL that affects the Service/s; and/or
Acts or omissions of any government, government agency, provincial or local authority
or similar authority, any laws or regulations having the force of law, civil strife,
riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, interruption
of transport, lockouts, flood, storm or fire.
GOVERNING LAW AND JURISDICTION
Agreement will be governed by and construed in accordance with the laws of the
Republic of South Africa and all disputes, actions and other matters relating
thereto will be determined in accordance with South African law by a South African
court having jurisdiction.
DOMICILIUM CITANDI ET EXECUTANDI
all purposes, including but not by way of limitation, the giving of any notice,
the making of any communication and the serving of any process, Customer chooses
its domicilium citandi et executandi ("domicilium") at the physical
address appearing on the application form to which these Standard Terms and Conditions
are attached. FAX2EMAIL chooses its domicilium citandi et executandi ("domicilium")
at Momentum Office Park, 142 Western Services Road, Woodmead, Johannesburg, South
Africa. Either party shall be entitled from time to time to vary its domicilium
and shall be obliged to give notice to the other within ten (10) days of the said
change. Any notice which either party may give to the other shall be posted by
prepaid registered post or hand delivered to the other party's domicilium and
shall be presumed, unless the contrary is proved by the party to whom it is addressed,
to have been received by that party on the tenth (10th) day after the date of
posting or on the day of delivery as the case may be.
16.1 No variation, amendment
or consensual cancellation of this Agreement or any provision or term thereof
or of any agreement, bill of exchange or other document issued or executed pursuant
to or in terms of this Agreement shall be binding unless recorded in a written
document signed by a duly authorised representative from both FAX2EMAIL &
16.2 The parties acknowledge
having read and understood this Agreement and are not entering into this Agreement
on the basis of any representations not expressly set forth in it.
Neither party shall be bound by any express or implied term, representation, warranty,
promise or the like not recorded
herein, whether it induced the Agreement
between Customer and FAX2EMAIL or not.
16.4 No extension of time or waiver
or relaxation of any of the provisions or terms of this Agreement, bill of exchange
or other document issued or executed pursuant to or in terms of this Agreement,
shall operate as an estoppel against either party hereto in respect of its right
under this Agreement, nor shall it operate so as to preclude either of the parties
thereafter from exercising its rights strictly in accordance with this Agreement.
In the event that any provision of this Agreement conflicts with any statute,
ruling or order of any governmental or regulatory body from time to time, then
such provision of this Agreement shall be controlled by the statute, ruling or
16.6 Should any of the
terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable,
such terms and conditions will be severable from the remaining terms and conditions,
which will continue to be valid and enforceable.
In the event of any expiration, termination or cancellation of this Agreement,
provisions hereof which are intended to continue and survive shall so continue
and survive. In particular, termination or cancellation of this Agreement shall
not affect any rights or duties arising under it with respect to Proprietary Information
as set out in Clause 10 above.
The terms and conditions appearing in the Schedule(s) hereto are hereby incorporated
into the Agreement. In the event of any conflict between the Standard Terms and
Conditions of this Agreement and those appearing in any Schedule/s hereto, these
Standard Terms and Conditions shall prevail. In respect of any conflict in respect
of pricing in the Agreement or the Schedules hereto, the costs set out in the
Cost Schedule shall prevail.
These terms and conditions, together with the Schedule(s), Annexures and attachments
hereto, constitute the whole of the agreement between FAX2EMAIL and Customer relating
to the subject matter hereof, notwithstanding anything in Customer's inquiry,
specification, acceptance, order or other documentation or discussion to the contrary.
SCHEDULE B - FAX2EMAIL SERVICES
DESCRIPTION OF SERVICE
undertakes to provide Customer with the value-added FAX2EMAIL Services.
The services in 1.1 above are hereinafter referred to the "FAX2EMAIL Service/s".
The provision of the FAX2EMAIL Service/s by FAX2EMAIL is subject to the terms
and conditions set out in this Schedule.
DURATION AND EFFECTIVE DATE
The Effective Date of this Schedule is the date when the service is activated.
Should the Effective Date occur after the date of signature of the Agreement,
nothing herein contained shall be construed so as to give either party the right
to cancel or rescind the Agreement before the Effective Date.
The provision of the FAX2EMAIL Service/s shall endure for an initial period of
30 (thirty) days ("Initial Period"), commencing on and with effect from
the Effective Date.
party hereto shall be entitled to terminate this Agreement by way of 30 (thirty)
days prior written notice of termination to be effective at the end of the Initial
Period. Failing such notice of termination, the duration of the Service shall
thereafter automatically renew for successive periods of 30 (thirty) days each
on the terms and conditions set out in this Schedule, subject to 30 (thirty) days
prior written notice of termination effective at the end of the then-current 30
(thirty) day period, and subject to an escalation in fees per clause 3.7 of the
Standard Terms and Conditions.
FEES AND CHARGES
pay the fees as specified in Cost Schedule/s (Schedule A) for the FAX2EMAIL Service/s.
SUSPENSION OF SERVICES
Notwithstanding anything to the
contrary set out in the Standard Terms and Conditions, FAX2EMAIL reserves the
right to, at any time, suspend the provision of the FAX2EMAIL Service/s for the
purposes of maintenance, modification or remedial work. In the event of any such
suspension, provide the Customer with 3 (three) days prior written notice in respect
of such maintenance.