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BizFax Reseller Agreement & Terms and Conditions
It has been agreed that BizFax will provide the agent with an
interface for Fax2Email Web application for the purposes of
registering new agents for the Fax2Email service.
Should additional set-up or development costs be incurred, as
per the agent’s request, BizFax will advise the agent of such
costs accordingly.
BizFax will provide the agent with an interface to view Monthly
statistics and entries and billing amounts. It will be the
responsibility of the customer to provide invoice to receive its
payment and to Pay its monthly fees upfront before the 10 of
each month. If no invoices are furnished no payments will be
made.
Most important issues:
1. The agent may not use or display any of BizFax trademarks
images without obtaining written approval from Bizfax. The agent
should promote the service under its own brands and names and
may not refer to Bizfax as being it’s partner.
2. For the purposes of online marketing or any form of
electronic marketing such as email or sms marketing the agent
may not target or used the keywords Bizfax or any word or
sentence which contains this word or the letters in such order
that it depicts or indicates Bizfax. i.e Bizfaxservice
a. NO EMAIL MARKING MAY REFER TO BIZFAX OR THE BIZFAX WEBSITE OR
USE THE WORD BIZFAX.
3. Agents may not do any bulk registrations of Fax to email
numbers with first obtaining written approval from Bizfax.
4. Fax to email numbers may not be randomly sent to users
without them having explicitly requested the service. Failure to
comply with this may result in immediate termination of this
agreement to the sole discretion of Bizfax.
5. Agents may not send spam or unsolicited emails of any nature
what so ever.
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1. DEFINITIONS AND INTERPRETATION
1.1 In this agreement, unless inconsistent with the context,
words referring to:
1.1.1 any one gender include a reference to the other genders;
1.1.2 the singular includes the plural and vice versa;
1.1.3 natural persons include juristic persons and vice versa.
1.2 The following expressions shall, unless otherwise stated or
inconsistent with the context
in which they appear, bear the following meanings and cognate
expressions shall bear
corresponding meanings:
1.2.1 "this agreement" shall mean the terms, conditions and
provisions set out in this
agreement,
1.2.2 “Bizfax” means DirectX Trading CC a company
Incorporated in accordance with the Company Laws of the republic
of South
Africa with registration number 1999/015755/07;
1.2.3 "Bizfax code of conduct" means the code of practice, rules
of procedure,
guidelines, directions and other requirements as stipulated
therein from time to
time;
1.2.4 "the commencement date" means the date of signature
hereto;
1.2.5 “agent” The person or company that enters their email
address on this reseller signup page to become and reseller or
agent. Or the person who applies to become an reseller/marketer
of the Bizfax fax to email number in order to make a profit.
the caption “Registered/Full name of the Agent;
1.2.6 "information" means all information and associated
messages, including without
limitation, text and graphic information provided by the agent;
1.2.7 “operator” means any telecommunication network operator,
including without
limitation, Vodacom (Proprietary) Limited, Mobile Telephone
Networks
(Proprietary) Limited, Cell C (Proprietary) Limited and Telkom
Limited;
1.2.8 the “service” means the Bizfax Free Fax to email service
for inbound faxes.
1.3 The headings in this agreement are for reference purposes
only and shall not affect
Interpretation.
1.4 Any reference in this agreement to "date of signature
hereof" shall be read as meaning a
reference to the date of the last signature of this agreement;
1.5 Any reference to an enactment is to that enactment as at the
date of signature hereof
and as amended or re-enacted from time to time;
1.6 If any provision in a definition is a substantive provision
conferring rights or imposing
obligations on any party, notwithstanding that it is only in the
definition clause, effect shall
be given to it as if it were a substantive provision in the body
of the agreement;
1.7 When any number of days is prescribed in this agreement,
same shall be reckoned
exclusively of the first and inclusively of the last day;
1.8 Where figures are referred to in numerals and in words, if
there is any conflict between
the two, the words shall prevail;
1.9 Where any term is defined within the context of any
particular clause in this agreement,
the term so defined, unless it is clear from the clause in
question that the term so defined
has limited application to the relevant clause, shall bear the
meaning ascribed to it for all
purposes in terms of this agreement, notwithstanding that that
term has not been defined
in this interpretation clause;
1.10 The expiration or termination of this agreement shall not
affect such of the provisions of
this agreement as expressly provide that they shall operate
after any such expiration or
termination or which of necessity must continue to have effect
after such expiration or
termination, notwithstanding that the clauses themselves do not
expressly provide for
this;
1.11 In the event of a conflict arising between the terms and
conditions of this agreement as
those contained in any other agreement or arrangement, the
provisions of this agreement
shall prevail.
1.12 The rule of construction that the contract shall be
interpreted against the party
responsible for the drafting or preparation of the agreement,
shall not apply.
2 DURATION
This agreement shall commence on the commencement date and shall
endure for a period of 24 Twenty Four months months calculated
from the commencement date (date of application via email
address) and shall thereafter be terminated by either party to
the other on 10 day written notice.
3 AGENT'S OBLIGATIONS
3.1 The agent shall advise Bizfax in writing of all relevant
information in order to enable
Bizfax to render the service.
3.2 The agent shall at all times throughout the duration of this
agreement:
3.2.1 Comply with Bizfax's Code of Conduct in all respects and
not bring Bizfax into disrepute.
3.2.2 Enable Bizfax to comply with all or any requirements and
conditions at any time and
from time to time imposed by any law in the Republic of South
Africa or by any licence in
terms of any enactment which is or may be applicable to or
affect the service.
3.2.3The agent will send no spam or unsolicited email. Bizfax
alone shall be the judge of what classifies as unsolicited or
Spam emails and will at its sole discretion have the right to
terminate this agreement with immediate effect should it decides
or obtain proof that the agent is making use of such practices.
3.3 The agent hereby authorises Bizfax to disclose all
information received by it to any
regulatory or other competent authority that may require same.
3.4 The agent shall at all times:
3.4.1 use the service strictly in accordance with:
3.4.1.1 such conditions as may be notified in writing by Bizfax
to the agent from time
to time;
3.4.1.2 the relevant provisions of any enactment, or other
competent authority;
3.4.1.3 any licence granted thereunder which governs the
operating of a
telecommunications system by the agent; and
3.4.1.4 any code of practice regulating the provisions of the
service contemplated in
terms of this agreement.
3.4.2 ensure that all marketing and/or promotional material
issued by it or on its behalf in
respect of or in connection with the service in terms of this
agreement complies in all
respects with Bizfax's code of conduct or order of court.
3.4.3 ensure that in any publicity, marketing or other
promotional activity, it does not in anyway
refer to Bizfax (or any of its associated and/or subsidiary
companies) without the
express written approval of a duly authorised representative of
Bizfax.
3.4.4 The agent shall at all times throughout the duration of
this agreement, to the extent
necessary, maintain in full force and effect all such rights,
authorisations, licences,
consents and permissions necessary for Bizfax to render the
service.
4 INDEMNITY
4.1 The agent shall indemnify and hold harmless Bizfax and all
members, officers,
servants and agents of Bizfax against all liabilities (including
damages, expenses and all
legal fees incurred on the attorney and own client scale)
actions, proceedings, claims
and demands and all alleged claims and demands howsoever
arising, directly or
indirectly, out of or in consequence of:
4.1.1 the service provided by Bizfax to the agent;
4.1.2 any claim of whatsoever nature made by whomsoever against
Bizfax;
4.1.3 any falsehood or misrepresentation of fact by the agent
(or a person acting
upon instructions from anyone authorised by the agent);
4.1.4 any failure by the agent to disclose a material fact, if
the misrepresentation or
omission was made negligently or with intent to deceive Bizfax,
or any person
relying on the service;
4.2 Bizfax shall as soon as is reasonably possible give notice
to the agent of any such
action, proceeding claim or demand.
4.3 When any information is furnished at the request of the
agent or the agent's
agent, both the agent and the agent shall jointly and severally
indemnify Bizfax, and
their agents and contractors pursuant to this sub-clause. The
agent has a continuing
duty to immediately notify Bizfax of any misrepresentations and
omissions made by an
agent.
5 BIZFAX'S OBLIGATIONS
5.1 Bizfax shall use all reasonable endeavours to maintain the
service 24 (twenty four)
hours a day.
5.2 Bizfax reserves the right to:
5.2.1 improve or alter the service as it deems, in its sole
discretion appropriate,
provided that such changes do not substantially change the
nature of the
service.
5.2.2 to suspend the operation of the service.
5.3 Bizfax may withdraw, terminate or suspend the service to any
agent if required by
any network operator, supplier or by any statutory or regulatory
authority or order of court. Any
determination made by Bizfax pursuant hereto, shall be without
liability of any nature
whatsoever and howsoever arising.
5.4 Bizfax shall have no obligation, whether under this
agreement or otherwise, to comply
with its obligations in terms of this agreement until such time
as the agent has
complied with all its obligations in terms of this agreement.
6 EXCLUSIVITY
The agent shall not at any time throughout the duration of this
agreement, whether directly or
indirectly, utilise the same or similar service of any other
service provider other than Bizfax.
7 WARRANTIES
The agent warrants to Bizfax that:
7.1 It has obtained the prior authorisations, consents and
permissions in order to enable
Bizfax to render the service;
7.2 It will make available to its agents procedures to lodge and
resolve complaints in
respect of the service. Such procedures shall be agreed to
between the parties prior to
disclosure to the agents of the agent;
7.3 it will develop, publish and enforce guidelines for the use
by its personnel relating to the
handling of enquiries and/or complaints from its agents.
8 PAYMENT
The agent agrees to the payment terms in respect of the service.
The setup fee will be R 295 and the monthly fees are R50 per
month for 24 months. Bizfax may from time to time change its
business models or pricing which may also have an effect on the
pricing indicated here.
9 FORCE MAJEURE
9.1 Bizfax shall not be responsible for any breach of warranty,
delay or failure in
performance under this agreement that results from events beyond
its control, including
without limitation, such as acts of God, acts of war, epidemics,
power outages, fire,
earthquakes, and other disasters.
9.2 In the event of any delay or failure in performance by
Bizfax due to any cause arising
from or attributable to acts, events, non-happenings, omissions,
accidents or acts beyond
the control of Bizfax, Bizfax shall be under no liability for
loss or injury suffered by the
agent as a result thereof.
9.3 The agent acknowledges that due to factors beyond the
control of Bizfax, the service
may fail, in whole or in part and/or the service may be
withdrawn, terminated or
suspended by any operator or by any statutory or regulatory
authority and that
notwithstanding, Bizfax will be charged for the service by the
operator. In such an event,
the agent shall be obliged to pay the fees and/or charges due to
Bizfax, without
deduction or set off. Bizfax shall take all reasonable measures
to obtain such credit or
refund from the Operator and until and upon actual receipt from
the Operator of the credit
or refund, as the case may be, the agent shall not be entitled
to take any action
against Bizfax for the recovery of such credit or refund as the
case may be.
10 BREACH
10.1 Should the agent commit a breach of any of the provisions
of this agreement, then
Bizfax shall be entitled to cancel this agreement against the
agent or to claim immediate payment and/or specific performance
by the agent of all the agent's obligations whether or not the
due
date for payment and/or performance shall have arrived, in
either event without prejudice
to Bizfax's rights to claim damages. The foregoing is without
prejudice to such other
rights that Bizfax may have at law.
10.2 The agent hereby agrees that Bizfax shall not be required
to furnish security in terms
of Rule 62 of the Rules of Court of the Magistrate’s Court.
10.3 The agent hereby agrees consents that, notwithstanding the
provisions of the
Magistrate’s Court Act, No 32 of 1944, with regard to
jurisdiction in connection with cause
of action and the amount claimed, a competent Magistrate’s Court
shall have jurisdiction
in respect of any legal action which Bizfax may institute
against the agent arising
from this agreement. Bizfax will, however, have the right,
notwithstanding the aforegoing
and in its own discretion, to institute any legal action which
exceeds the jurisdiction of the
Magistrate’s Court against the agent in a competent division of
the High Court.
10.4 The agent shall be liable for all costs incurred by Bizfax
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 and costs
of counsel as on brief
whether incurred prior to or during the institution of legal
proceedings or if judgment has
been granted, in connection with the satisfaction or enforcement
of such judgment.
11 TERMINATION, SUSPENSION AND REMOVAL
11.1 Bizfax shall be entitled at any time and with immediate
effect to temporarily or
permanently suspend the service, or part thereof and/or
terminate this agreement, in all
cases without liability, in the event that:
11.1.1 any licences or any permission or authorisation necessary
for the operation of
the service is revoked, temporarily or permanently suspended or;
11.1.2 this agreement or anything contemplated hereunder is
alleged or determined to
be in contravention of any licences, permissions, authorisations,
relevant
legislation or the rights of any third party.
11.1.3 the agent is in breach of this agreement or Bizfax's code
of conduct;
or
11.1.4 the agent causes anything to be done which in Bizfax's
sole discretion is
unlawful and/or brings Bizfax's reputation into disrepute and/or
is or may be
prejudicial to Bizfax's commercial interests; or
11.1.5 it is requested or directed to do so as a result of a
determination, adjudication or
other decision or requirement of the office of any relevant
competent body or
authority or order of court.
11.1.6 Bizfax, upon one months written notice to the agent,
decides to terminate
this agreement;
11.2 Upon expiration or termination of this Agreement for any
reason
11.2.1 Bizfax shall as soon as is practical prevent access by
the agent to the
service; and
11.2.2 The agent shall pay to Bizfax all amounts owing, without
deduction or set
off.
12 EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY
12.1 This limitation on damages applies to loss and damages of
all types, including but not
limited to direct, compensatory, indirect, special,
consequential, exemplary, or incidental
damages incurred by any person. This limitation on damages
applies as well to liability
under contract, delict, and any other form of liability claim.
12.2 Bizfax shall not be liable for any consequential, indirect,
special, punitive or incidental damages,
whether foreseeable or unforeseeable, based on claims of the
agent (including, but not
limited to, claims for loss of data, goodwill, profits, use of
money or use of the software programs,
interruption in use or availability of data or the software
programs, stoppage of other work or
impairment of other assets), arising out of breach or failure of
express or implied warranty,
breach of contract, misrepresentation, negligence, strict
liability in delict or otherwise, whether
based on this agreement, any commitment performed or undertaken
under or in connection with
this agreement, or otherwise.
12.3 Bizfax does not warrant the accuracy, authenticity,
reliability, completeness, currentness,
merchantability, or fitness of the service agent and shall not
incur liability for representations
of information made by the agent. Bizfax does not warrant any
software used in respect of
the service provided.
12.4 In the event that Bizfax is found to be liable the maximum
liability which Bizfax may incur in any action or proceeding
shall not exceed R1 000.00 (one thousand Rand), provided that
Bizfax
shall incur no liability whatsoever unless it:
12.4.1 receives written notice of the claim; and
12.4.2 the notice is served within 30 (thirty) days of the date
the agent ought reasonably to
have become aware of any claim.
12.5 Neither party shall be liable to the other in respect of
any breach of this agreement caused by
revocation or alteration of any licence, permission or
authorization governing the operation of the
service.
12.6 Bizfax shall not be liable for any technical or other
failure in the service.
12.7 Bizfax does not warrant that the service shall be fault
free or free of interruptions.
12.8 Bizfax shall not be liable to the agent for suspending
access to the service or any part
thereof.
12.9 Bizfax makes no warranty or representation that the service
in whole or in part is permitted
under any licence, permission, authorisation or legislation.
12.10 The agent shall indemnify and hold harmless Bizfax and all
members, officers, servants,
agents and duly authorised representatives of Bizfax against all
liabilities (including damages
whether direct, indirect or consequential, expenses, costs and
legal fees on an attorney and own
client scale) actions, proceedings, claims and demands on all
alleged claims and demands
howsoever arising.
13 ACKNOWLEDGEMENTS
The agent acknowledges and agrees that the operation of the
service may depend on factors beyond
Bizfax's control.
14 NO FIDUCIARY RELATIONSHIP
The agent is an independent contractor and shall not represent
itself as having any power to bind
Bizfax or to assume or to create any obligation or
responsibility, express or implied, on behalf of Bizfax
in terms of this agreement. Nothing contained in this agreement
shall be deemed to establish a
relationship of principal and agent between Bizfax and the
agent, or with any of their agents or
employees, for any purpose whatsoever. This agreement shall not
be construed as constituting the
agent and Bizfax as partners, or to create any other form of
legal association or arrangement which
would impose liability upon one party for the act or failure to
act of any other party.
15 INTEREST
The agent shall pay interest at the publicly quoted basic rate
per annum ruling from time to time at
which ABSA Limited lend on overdraft plus 2%, which rate shall
be proved by way of a certificate signed
by any employee of such Bank whose authority need not be proved,
compounded monthly in arrear, on
all amounts owing by the agent to Bizfax which have not been
paid on the due date thereof,
reckoned from the due date thereof until date of payment. Such
interest shall be payable on demand.
16 SEVERABILITY
In the event of any of the provisions or terms of this agreement
are found to be unenforceable or void for
any reason whatsoever, each provision or term shall be deemed to
be severable from the remaining
provisions of this agreement, which agreement shall remain in
full force and effect but for these terms and
conditions.
17 CESSION
The agent shall not without the written consent of Bizfax, be
entitled to cede, assign or otherwise
transfer all its right, title and interest in and to this
agreement to any other entity, natural or juristic. Bizfax
shall be entitled to cede, assign or otherwise transfer all its
right, title and interest in and to this
agreement to any other entity, natural or juristic.
18 WARRANTY OF AUTHORITY
18.1 The signatory warrants, as a material warranty which the
signatory relies on in entering
into this agreement, that he is duly authorised to represent and
bind the agent to this
agreement, and that he has read and understood each term and
condition of this
agreement and accepts them as binding on him and the agent. The
agent hereby
warrants that it regards the terms and conditions of this
agreement as binding upon it.
18.2 The signatory and the agent hereby warrant that the
signatory to any tax invoice,
delivery note or other documentation of Bizfax made out in the
name of, or to the
agent is duly authorised to bind the agent in respect of the
relevant transaction.
18.3 The signatory shall be bound by the provisions of this
agreement as if he were the
agent, mutatis mutandis, particularly, but without limitation
thereto, insofar as the
agreement provides for proof of facts, costs of proceedings,
service of process,
limitations of defences and jurisdiction.
19 SURETYSHIP AND WARRANTY OF AUTHORITY
The signatory, by his signature hereto, binds himself in favour
of Bizfax, its successors-in-title and
assigns as surety for and co-principal debtor in solidum with
the agent for the due and punctual
performance by the agent of all its obligations to Bizfax in
terms of this agreement.
19.1 The suretyship in 19 shall remain of full force and effect
notwithstanding:
19.1.1 any amendment to this agreem ent and/or any other
agreement for the time being
subsisting between the parties;
19.1.2 any indulgence, concession, leniency or extension of time
which may be shown or given
by Bizfax to the agent.
19.2 The signatory (or online applicant) hereby renounces the
benefits of the legal exceptions “non causa debiti”,
“errore calculi”, “excussion”, “division”, “de duobus vel
pluribus reis debendi”, “no value
received” and “revision of accounts”, with the meaning and
effect of all of which he
declares himself to be fully acquainted.
20 NOTICES AND DOMICILIUM
20.1 The agent chooses as its domicilium citandi et executandi
(“domicilium”) for the
purposes of the giving of any notice, the serving of any process
and for any other
purpose arising from this agreement at the addresses and
telefacsimile numbers as set
out in the application form.
20.2 The agent shall be entitled from time to time, by written
notice to Bizfax, to vary its
domicilium to any other address which is not a post office box
or poste restante, provided
that such address is within the Republic of South Africa.
20.3 Any notice given shall be in writing and if
20.3.1 delivered by hand during the normal business hours of the
agent at the its
domicilium for the time being, shall be presumed, until the
contrary is proved by
the addressee, to have been received by the agent at the time of
delivery;
20.3.2 delivered by prepaid courier to the agent at the its
domicilium for the time
being, shall be presumed, until the contrary is proved by the
agent, to have
been received by the agent on the 3
rd
(third) day following despatch by
Bizfax to the courier company;
20.3.3 transmitted by telefacsimile to the agent at the agent’s
telefacsimile
address for the time being, shall be presumed, until the
contrary is proved by the
agent, to have been received by the agent on the first business
day after
the date of transmission.
21 WHOLE AGREEMENT
This agreement constitutes the whole agreement between the
parties as to the subject matter hereof and no agreements,
representations or warranties between the parties other than
those set out herein are
binding on the parties.
22 VARIATION
22.1 Subject to the provisions of clause 23, no addition to or
variation, consensual
cancellation or novation of this agreement or any term hereof
and no waiver of any right
arising from this agreement or its breach or termination shall
be of any force or effect
unless reduced to writing and signed by both the parties or
their duly authorized
representatives.
22.2 No person other than a duly authorised representative of
Bizfax has any authority to
delete, amend or in any respect vary and of these conditions or
accept any other
conditions or agree to a consensual cancellation hereof.
23. AMENDMENTS GENERALLY
23.1 Notwithstanding anything contained to the contrary in this
agreement, Bizfax shall be
entitled, in its sole discretion, to amend this agreement from
time to time (prospectively
and not retroactively), on 7 (seven) days written notice to the
agent.
23.2 Should the agent object to the proposed amendments, it
shall do so in writing within 7
(seven) days of such written notice, failing which the amendment
shall be deemed to be
effective after expiry of such period.
23.3 Should the agent object to the proposed amendment, Bizfax
reserves the right to
suspend the service and/or cancel this agreement without
incurring any liability of any
nature whatsoever.
24 RELAXATION
No latitude, extension of time or other indulgence which may be
given or allowed by either party to any other party in respect
of the performance of any obligation hereunder or the
enforcement of any right arising from this agreement and no
single or partial exercise of any right by any party shall under
any circumstances be construed to be an implied consent by such
party or operate as a waiver or a novation of, or otherwise
affect any of that party's rights in terms of or arising from
this agreement or estop such party from enforcing, at any time
and without notice, strict and punctual compliance with each and
every provision or term hereof.
25 CONCLUSION OF AGREEMENT ON-LINE
25.1 Should this agreement be signed by the agent who shall, for
purposes of this
agreement be regarded as having accepted an offer by Bizfax to
conduct business with
it, on Bizfax’s official website namely www.Bizfax.co.za the
conclusion of the said
agreement shall be determined at the time when and place where
Bizfax has received
acceptance of its offer by the agent or when the customer
completes his/her email in the resellers application from.
25.2 For the purposes of this agreement an electronic signature
shall constitute the filling in of
the agent’s full name and title on the cover page of this
agreement in conjunction with
the act of clicking on the icon which reads: “I accept the terms
and conditions of this
agreement.”
25.3 This agreement shall, when sent electronically, be regarded
as having been received by
Bizfax when it is capable of being retrieved and processed by
Bizfax.
25.4 It shall be deemed that this agreement, if sent
electronically, has been sent from the
agent’s usual place of business or residence and has been
received at Bizfax’s
usual place of business.
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