1.
DEFINITIONS
AND INTERPRETATION
1. In this Agreement, the words hereunder
will have the meanings assigned to them below:-
1. "Agreement" means these
Standard Terms and Conditions, any Application Form and Annexure A Outbound
Call Charges;
2. "Application Form" means a
Customer Service Order Form in IVT TELECOMS’ standard form from time to time,
completed and signed by the Customer and accepted and counter-signed by IVT TELECOMS;
3. "Customer" means the party
specified as the Customer on the Application Form to which these Standard Terms
and Conditions are attached;
4. "Effective Date" means,
notwithstanding the date of signature of this Agreement, the date on which the
Service is first made available by IVT TELECOMS to the Customer;
5. "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.
6. IVT TELECOMS (Proprietary) Limited, with registration
number 2005/022597/07;
7. "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;
8. "Service" means the "Fax
to E-mail" service provided by IVT TELECOMS to the Customer in terms of
this Agreement;
9. "Service Provider" means
Telkom SA Limited or any other public switched telecommunications network
operator with whom IVT TELECOMS may contractor for the provision of the
service;
10. "VAT" means Value-Added Tax.
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 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
1. 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.
2. 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
1. 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 IVT TELECOMS and the Customer shall account
to IVT TELECOMS for any such monies.
2. The Customer is prohibited from allowing
any person other than its employees or other authorised parties, access to the
Service.
3. 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 IVT TELECOMS’S' reasonable opinion) risks causing
liability to IVT TELECOMS.
4. 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.
5. The Customer shall indemnify IVT
TELECOMS for any and all costs, damages, liabilities and expenses which may be
suffered or incurred by IVT TELECOMS arising out of or relating to any breach
of Clause 3.3 or 3.4 or by the Customer.
4.
CHARGES
1. The Customer will be invoiced on a
monthly basis for Charges due under this Agreement in Annexure A for outbound
charges only (to the extent that it may be applicable to the Customer). All
Charges shall be due upon the Customer's receipt of IVT TELECOMS' invoice and
payable within 30 (thirty) days of the invoice date. The Customer shall pay all
amounts due to IVT TELECOMS under this Agreement without deduction or set-off
for any reason.
2. If payment is not made in accordance
with this Agreement, IVT TELECOMS may charge interest on the outstanding sum at
the rate of 2% (two percent) above the prime overdraft lending rate of Standard
Bank of South Africa (a certificate signed by any manager of a branch of
Standard Bank shall constitute prima
facie proof thereof) from time to time for the period beginning on the date
payment is due until the date payment is actually made (whether before or after
judgment). IVT TELECOMS shall also be entitled to compensation from the
Customer for its debt recovery costs up to the maximum amount allowed by law
from time to time.
3. The Customer acknowledges that in the
event of any dispute on Charges relating to usage, IVT TELECOMS' records shall
be presumed to be accurate unless proved otherwise by an independent auditor.
4. IVT TELECOMS may change the level of its
CHARGES after giving the Customer at least 30 (thirty) days' prior written
notice of its intention to do so.
1. IVT TELECOMS 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.
2. In the course of an Agreement, the
Customer may transfer communications to IVT TELECOMS. 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 IVT TELECOMS via its
telecommunications systems. The Customer hereby gives its express consent to
IVT TELECOMS for such transfer and/or processing IVT TELECOMS 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. IVT TELECOMS 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 in order to
ensure compliance with the Interception of Communications
and Provision of Communication Related Information Act no 70 of 2002
3. IVT TELECOMS does not warrant or
guarantee that the information transmitted by or available to the Customer by
way of the Service:
1. will be preserved or sustained in its
entirety;
2. will be delivered to any or all of the
intended recipients or will be delivered within a particular time;
3. will be suitable for any purpose;
4. will be free of inaccuracies or defects
or bugs or viruses of any kind; or
5. will be secured against intrusion by
unauthorised third parties;
6. and IVT TELECOMS assumes no liability,
responsibility or obligations in regard to any of the exclusions set forth in
this clause 5.3.
1. Subject to Clause 6.2:
1. IVT TELECOMS 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
2. IVT TELECOMS shall have no liability to
any of the Customer's customers and end-users in relation to the Agreement, and
the Customer shall indemnify IVT TELECOMS for any and all costs, damages,
liabilities and expenses arising out of or relating to any claim made by such
party.
3. 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 IVT
TELECOMS 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, IVT TELECOMS shall provide
the Customer with 5 (five) days prior written notice in respect of such planned
maintenance. IVT TELECOMS reserves the right to suspend the Services to carry out
emergency maintenance on shorter notice.
7.
DOCUMENTATION
Any specifications,
descriptive matter, drawings and other documents which may be furnished by IVT
TELECOMS to the Customer from time to time:
1. 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;
2. shall remain the property of IVT TELECOMS
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 IVT
TELECOMS. Such documents shall be returned to IVT TELECOMS on demand.
8.
TERMINATION
and SUSPENSION
1. IVT TELECOMS may terminate the Agreement
or, at IVT TELECOMS' 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 IVT TELECOMS; or (d) the CUSTOMER suffers or
undergoes an Event of Insolvency or (e) IVT TELECOMS 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.
2. The Customer may terminate the Agreement
if: (a) IVT TELECOMS 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) IVT TELECOMS suffers or undergoes
an Event if Insolvency.
3. Termination is without prejudice to the
accrued rights and remedies of either party.
1. 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.
2. Clause 10.1 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.
10.
FORCE
MAJEURE
1. IVT TELECOMS 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 IVT TELECOMS.
2. It is expressly recorded that for
purposes of this clause the following shall be regarded as events or conditions
beyond IVT TELECOMS' reasonable control:
1. a Service Provider fault that affects
the Service; and/or
2. 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 IVT TELECOMS that
affects the Service; and/or
3. 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 IVT TELECOMS;
(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.
11.
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.
12.
GENERAL
1. The Customer may not assign or otherwise
transfer any of its rights under the Agreement without IVT TELECOMS' prior
written consent, which shall not be unreasonably withheld. No permitted
assignment or transfer shall relieve the Customer of its obligations hereunder.
IVT TELECOMS may assign or transfer its obligations under this Agreement to any
third party on written notice to the Customer.
IVT
TELECOMS (PTY) Ltd.
41 Sprite Street, Glenwood Office Park, Block A, Faerie Glen, Pretoria,
South
Africa, 0043
Fax:
086 641 3489
Attn: Managing Director
3. 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.
4. Except as expressly provided by this
Agreement, the Agreement may only be amended or modified by a written document
signed by both parties.
5. 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.
6. 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.
7. Failure by IVT TELECOMS to enforce any
of its rights under the Agreement will not act as a waiver of that right unless
IVT TELECOMS acknowledges the waiver in writing. No single waiver shall be
deemed a continuous waiver.
8. Except where expressly stated otherwise,
the rights and remedies available under this Agreement are cumulative.
9. This Agreement relates to the provision
of the Service only. Should the Customer require IVT TELECOMS to provide any
additional services, such services shall be provided in terms of a separate
agreement to be concluded between IVT TELECOMS and the Customer. The Customer
hereby agrees to accept any information that IVT TELECOMS may send regarding
future value added services via the Customer’s e-mail address.