STANDARD TERMS AND CONDITIONS
Agreement, the words hereunder will have the meanings assigned to them below: -
means these Standard Terms and Conditions and any Application Form, Schedules,
Annexures and attachments hereto;
means Schedule A attached hereto wherein the costs and service
specifications of the Service/s are specified;
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;
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;
“EasyFax” refers to Oasis
Information Technologies, registration number 1998/047086/23;
“Initial Period” means the
initial contract term of the Service/s, as per physical agreement signed with
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;
all the service/s provided by EASYFAX as specified in the Schedule/s to this
"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 of 1991.
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.
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.
CHARGES AND PAYMENT
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 EASYFAX 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
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,
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
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 otherwise.
In the event of any dispute arising as to the amount or calculation of
any fee or charge to which EASYFAX is entitled, the dispute shall be referred
for determination to EASYFAX’s auditors.
They shall act as experts and their decision shall be final and binding
on EASYFAX 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
Any amount falling due for payment by Customer to EASYFAX 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 in arrears.
EASYFAX 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 that:
EASYFAX shall not be entitled to increase the monthly fees during the
Initial Period of this Agreement; and
EASYFAX 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 to Customer.
Customer shall comply strictly with all restrictions imposed on computer
networks through which any information and/or data transmitted by Customer
Customer shall not commit nor attempt to commit any act or omission which
directly or indirectly:
Damages in any way EASYFAX’s technical infrastructure or any part
Impairs or precludes EASYFAX 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.
such an event, should EASYFAX incur expenses to remedy the situation, EASYFAX
reserves the right to charge the Customer the amount necessary to cover
EASYFAX’s additional expenditure. Notwithstanding the above, EASYFAX reserves
the right to take any other appropriate action it may deem necessary to remedy
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 EASYFAX.
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
EASYFAX, 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
EASYFAX 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 EASYFAX
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 EASYFAX has no obligation to assist Customer
in this regard.
Save as expressly set
out in this Agreement, EASYFAX 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
Without limitation to
the generality of 5.1 above, EASYFAX 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;
Will be secured against intrusion by unauthorised third parties;
EASYFAX assumes no liability, responsibility or obligations in regard to any of
the exclusions set forth in this clause 5.
Except as otherwise
expressly provided herein to the contrary, EASYFAX 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 EASYFAX 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.
Subject to clause 6.1
above, the entire liability of EASYFAX 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 EASYFAX in
respect of such claim.
indemnifies EASYFAX against and holds EASYFAX 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 EASYFAX is excluded in terms of clause 6.1 above.
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 EASYFAX 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.
specifications, descriptive matter, drawings and other documents, which may be
furnished by EASYFAX 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 EASYFAX 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 EASYFAX.
Such documents shall be returned to EASYFAX on demand.
Subject to the provisions of clause 8.2 to the contrary, if Customer
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 EASYFAX;
Commits any act of insolvency;
Endeavours to compromise generally with its creditors or does or causes
anything to be done which may prejudice EASYFAX 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;
EASYFAX 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;
any event without prejudice to EASYFAX’s right to claim damages.
shall be liable for all costs incurred by EASYFAX 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.
what is set out in Clause 8.1.1 above, EASYFAX shall be entitled to suspend the
provision of the Services where Customer breaches any provision of this
Agreement or where any payment to EASYFAX is overdue by more than 7 (seven)
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 EASYFAX. 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
EASYFAX, 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.
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
Each party shall ensure that its employees comply with its obligations
under this section 10.
This section 10 shall survive termination or cancellation of this
This Agreement does
not transfer to either party title to any intellectual property contained in any
Proprietary Information of the other party.
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 EASYFAX.
signatory to this Agreement, as the authorised representative of the Customer,
hereby binds himself/herself to EASYFAX 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.
EASYFAX 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 EASYFAX,
provided that EASYFAX 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 EASYFAX 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 EASYFAX 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
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.
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. EASYFAX 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.
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 EASYFAX & Customer.
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.
by any express or
representation, warranty, promise or the like not recorded
herein, whether it induced the Agreement between Customer and
EASYFAX or not.
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 order.
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 EASYFAX and Customer relating to
the subject matter hereof, notwithstanding anything in Customer’s inquiry,
specification, acceptance, order or other documentation or discussion to the
SCHEDULE B – EASYFAX SERVICES
DESCRIPTION OF SERVICE
EASYFAX undertakes to provide Customer with the value-added EASYFAX
The services in 1.1 above are hereinafter referred to the “EASYFAX
The provision of the EASYFAX Service/s by EASYFAX is subject to the terms
and conditions set out in this
DURATION AND EFFECTIVE
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 EASYFAX Service/s shall endure for an
initial period of 30 (thirty) days (“Initial Period”), commencing
on and with effect from the Effective Date.
Either 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
shall pay the fees as specified in Cost Schedule/s (Schedule A) for the EASYFAX
SUSPENSION OF SERVICES
anything to the contrary set out in the Standard Terms and Conditions, EASYFAX
reserves the right to, at any time, suspend the provision of the EASYFAX
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.
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