1. DEFINITIONS AND INTERPRETATION
In this Agreement, the words hereunder will have the meanings assigned to them below:-
- "Agreement" means these Standard Terms and Conditions, any Application Form and Outbound Call Charges;
- "Application Form" means a Customer Service Order Form in standard form from time to time, completed and signed by the Customer and accepted and counter-signed by FaxMe;
- "Customer" means the party specified as the Customer on the Application Form to which these Standard Terms and Conditions are attached;
- "Effective Date" means, notwithstanding the date of signature of this Agreement, the date on which the Service is first made available by FaxMe to the Customer;
- "Event of Insolvency" means if either of the parties is provisionally or finally liquidated (save for the bona fide purpose of reconstruction or amalgamation) and/or is placed under judicial management or if either of the parties enters into a compromise with any of its creditors.
- "FaxMe" means Maxi Cloud LTD with registration number ;
- "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" means the "Fax to E-mail" service provided by FaxMe to the Customer in terms of this Agreement;
- "Service Provider" means any public switched telecommunications network operator with whom FaxMe may contractor for the provision of the service;
- "VAT" means Value-Added Tax.
- 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 includes the other gender, the singular includes the plural and vice versa. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
2. COMMENCEMENT AND DURATION
- The Agreement shall commence upon the Effective Date and shall continue for an initial period of three months ("the initial period"). The customer agrees to utilize the Service on a regular basis and if not utilized for a period of three continuous months, the user’s number will be reallocated to another subscriber.
- Subject to Clause 8, either party shall be entitled to terminate this Agreement on not less than three months written notice to the other, provided that no such notice of termination may be given during the initial period so as to result in the termination of this Agreement taking effect prior to the expiry of the initial period. Should this Agreement not be terminated on the expiry of the initial period, it shall continue indefinitely thereafter unless cancelled by either party on not less than three months written notice to the other.
3. CUSTOMER'S OBLIGATIONS
- The Customer is prohibited from selling, reselling or otherwise dealing with the Service/s in any manner whatsoever other than as contemplated herein. Without limitation to the foregoing, any consideration which the Customer may receive whilst acting in breach of this prohibition shall be forfeited to FaxMe and the Customer shall account to FaxMe for any such monies.
- The Customer is prohibited from allowing any person other than its employees or other authorised parties, access to the Service.
- The Customer may not at any time (and shall not at any time permit others to) use the Service in contravention of any applicable law, in any way which infringes the rights of any third party or in any which causes or (in FaxMe's reasonable opinion) risks causing liability to FaxMe.
- The Customer warrants that it shall not (and shall not at any time permit others to) use the Service to produce, host or present any content in contravention of any person's intellectual property rights, and in particular warrants that it shall recognize, acknowledge and use any content in accordance with any third party's intellectual property rights. The Customer furthermore warrants that it has received all necessary permissions to make use of any intellectual property relating to third parties.
- The Customer shall indemnify FaxMe for any and all costs, damages, liabilities and expenses which may be suffered or incurred by FaxMe arising out of or relating to any breach of Clause 3.3 or 3.4 or by the Customer.
- FaxMe warrants that it shall use reasonable care and skill in providing the Service and that the Service shall correspond in all material respects with its description.
- In the course of an Agreement, the Customer may transfer communications to FaxMe. Where communications are Processed in the course of performance of an Agreement, the parties are that this shall be done in the ordinary course of business of FaxMe via its telecommunications systems. The Customer hereby gives its express consent to FaxMe for such transfer and/or processing FaxMe agrees that it shall only process such communications received from the Customer as may be reasonably necessary for the purposes of the Agreement or as otherwise required by law or to comply with legal obligations. FaxMe warrants that it shall take such technical and organisational measures as it believes to be reasonable and appropriate to protect such communications from unauthorised or unlawful processing and against accidental loss, destruction or damage.
FaxMe does not warrant or guarantee that the information transmitted by or available to the Customer by way of the Service:
- will be preserved or sustained in its entirety;
- will be delivered to any or all of the intended recipients or will be delivered within a particular time;
- 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;
- and FaxMe assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 5.3.
5. LIMITATION OF LIABILITY
Subject to Clause 6.2:
- FaxMe shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty, common law or under the expressed terms of the Agreement, for any loss of revenue, profit, goodwill, anticipated savings, data or wasted expenditure or any indirect, incidental or consequential losses, liabilities or damages whatsoever arising from, or relating to the Agreement or the performance or non-performance of its obligations hereunder (irrespective of whether such losses, liabilities or damages are foreseeable or within the parties' reasonable contemplation); and
- FaxMe shall have no liability to any of the Customer's customers and end-users in relation to the Agreement, and the Customer shall indemnify FaxMe for any and all costs, damages, liabilities and expenses arising out of or relating to any claim made by such party.
- 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 Service is provided, the provision of the Services may be suspended from time to time, and all liability on the part of FaxMe 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. In the event of any such suspension, FaxMe shall provide the Customer with 5 (five) days prior written notice in respect of such planned maintenance. FaxMe reserves the right to suspend the Services to carry out emergency maintenance on shorter notice.
Any specifications, descriptive matter, drawings and other documents which may be furnished by FaxMe to the 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 FaxMe and shall be deemed to have been imparted by it in trust to the Customer for the sole use of the Customer. All copyright in such documents vests in FaxMe. Such documents shall be returned to FaxMe on demand.
7. TERMINATION and SUSPENSION
- FaxMe may terminate the Agreement or, at FaxMe' discretion, cease or suspend the provision of Services upon written notice to the Customer if: (a) the Customer fails to pay any Charges when due and does not cure the failure within 7 (seven) days of a notice requiring payment; (c) if the Customer commits a breach of Clause 3.3; (d) the Customer commits a breach of the Agreement (other than as described in Clauses 8.1(a) and (b) above) and does not cure such breach within 30 (thirty) days of written notice from FaxMe; or (d) the CUSTOMER suffers or undergoes an Event of Insolvency or (e) FaxMe is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority or otherwise ceases to have a licence to provide the Service.
- The Customer may terminate the Agreement if: (a) FaxMe commits a material breach of the Agreement and, in the case of a breach capable of remedy has not cured such breach within 30 (thirty) days of receipt of written notice from the Customer setting out the details of the breach and requiring its remedy; or (b) FaxMe suffers or undergoes an Event if Insolvency.
- Termination is without prejudice to the accrued rights and remedies of either party.
8. PROPRIETARY INFORMATION
- The parties will keep in strict confidence all Proprietary Information obtained (whether directly or indirectly) from the other party under or in connection with any Agreement. Each party agrees not to disclose the other party's Proprietary Information to any person (other than their employees who need to know the information for the purpose of the Agreement and who are under an equivalent duty of confidentiality) without the prior written consent of the other party. Each party shall: (a) use the other party's Proprietary Information only for the performance of its obligations under the Agreement; (b) treat all Proprietary Information of the other party in the same manner as it treats its own, but in no case with less than reasonable care; and (c) not make copies of the other party's Proprietary Information.
- Clause 8.1 will not apply to information which: (a) is publicly available other than through a breach of contract; (b) is lawfully in the possession of the recipient before disclosure by the other party and is not otherwise subject to a confidentiality undertaking; (c) is obtained through a third party who is free to disclose it; (d) is required by law to be disclosed (and then, to the extent legally permissible, only after reasonable advance notice to the disclosing party); (e) is disclosed to professional advisers for the purpose of taking advice or for other legitimate business purposes.
9. FORCE MAJEURE
- FaxMe shall not be liable for non-performance under this Agreement to the extent that the non-performance is caused by events or conditions beyond the reasonable control of FaxMe.
It is expressly recorded that for purposes of this clause the following shall be regarded as events or conditions beyond FaxMe' reasonable control:
- a Service Provider fault that affects the Service; and/or
- the non-performance, inability to perform or delay in performance by the Service Provider relating to the provisioning of equipment, services and/or facilities to FaxMe that affects the Service; and/or
- acts of God or nature, explosion, flood, tempest, other atmospheric conditions, fire or any accident; (b) war, threat of war, terrorist acts or threat or terrorist acts, sabotage, insurrection, civil disturbance or requisition; (c) acts, restrictions, regulations, byelaws, prohibitions, orders or measures of any kind on the part of any governmental, parliamentary, regulatory, local, judicial or equivalent authority; (d) acts or omissions of any supplier, agent, sub-contractor or other third party; (e) failure of any telecommunications network not under the control of FaxMe; (f) import or export regulations or embargoes; (g) strikes, lock-outs or other industrial actions or trade disputes (whether involving its employees or those of a third party) (h) difficulties in obtaining raw materials, labour, fuel, parts or machinery; (i) computer viruses or worms, denial of service attacks, spoofing and/or other hacking attacks; or (j) power failures or interruptions of other utility services or a breakdown in machinery.
10. GOVERNING LAW AND JURISDICTION
This Agreement will be governed by and construed in accordance with the laws of South Africa shall have exclusive jurisdiction over all disputes, actions and other matters relating thereto.
- The Customer may not assign or otherwise transfer any of its rights under the Agreement without FaxMe' prior written consent, which shall not be unreasonably withheld. No permitted assignment or transfer shall relieve the Customer of its obligations hereunder. FaxMe may assign or transfer its obligations under this Agreement to any third party on written notice to the Customer.
The parties choose as their domicilia citandi et executandi for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses:
- The Agreement sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings relating to the subject matter of the Agreement. The parties acknowledge that: (a) they have not entered into the Agreement in reliance of any representations, terms or other assurances not expressly set out in the Agreement; (b) their sole remedies in relation to the Agreement are those for breach of contract; and (c) that this Clause does not apply in respect of any fraudulent representations or other assurances.
- Except as expressly provided by this Agreement, the Agreement may only be amended or modified by a written document signed by both parties.
- All terms and conditions of the Agreement which by their nature are intended to survive termination of the Agreement shall so survive. This includes, without limitation Clauses. 5. 6 and 9.
- If any term, condition, clause or provision of the Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of the Agreement shall not be affected thereby.
- Failure by FaxMe to enforce any of its rights under the Agreement will not act as a waiver of that right unless FaxMe acknowledges the waiver in writing. No single waiver shall be deemed a continuous waiver.
- Except where expressly stated otherwise, the rights and remedies available under this Agreement are cumulative.
This Agreement relates to the provision of the Service only. Should the Customer require FaxMe to provide any additional services, such services shall be provided in terms of a separate agreement to be concluded between FaxMe and the Customer. The Customer hereby agrees to accept any information that FaxMe may send regarding future value added services via the Customer’s e-mail address.