WAZOKU LIMITED (t/a Wazoku)
SOFTWARE AS A SERVICE AGREEMENT
IT IS HEREBY AGREED between the parties as follows:
1. Definitions and Interpretation
1.1 In this Agreement the following words and expressions shall have the meanings set out below:
“Additional Support Charges” means additional sums that may be charged under this Agreement in accordance with Wazoku’s rates from time to time for work undertaken on a time and materials basis;
“Agreement” means this Software as a Service Agreement;
“Charges” means the Maintenance & Support Fee and the Software Service Fee;
“Client and User Data” means the data, documents, information and material of the Client and the Users, which is processed and/or posted using the Software Service;
“Client Material” means all material, which is provided by the Client to Wazoku for use in the performance of the Services;
“Maintenance & Support Fee” means the amount payable by the Client to Wazoku for the Maintenance & Support Services;
“Implementation Services” means any Maintenance & Support services to be supplied by Wazoku to the Client, as set out in the Service Order Form;
“Effective Date” means the date this Agreement is accepted;
“Error” means a cessation, interruption or degradation of the usual functionality of the Software Service;
“Force Majeure” means acts of God, war, hostilities, riot, fire, explosion, accident, flood, sabotage, , raw materials or labour, strike, lock-out or injunction compliance with governmental laws, regulations or orders, or any other cause whether or not of the class or kind enumerated which affects performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected;
“Intellectual Property Rights” means all intellectual property rights, including patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;
“Personal Data” means all information relating to and/or identifying individuals as defined by the Data Protection Act 1998, which is processed using the Software Service;
“Permitted Number” means the number of Users who are granted access to the Software Service by Wazoku, as amended from time to time;
“Portal” means the software and hardware infrastructure of which certain access, as described herein, is made available to the Client via the Website or such other URL(s) as may be notified to the Client by Wazoku from time to time and all software and technology created by Wazoku through the provision of the Maintenance & Support Services;
“Rate Card” means details of the Charges appearing on the Website and as amended from time to time in accordance with 6.8;
“Service Order Form” means the order form completed by the Client during the online sign up process prior to acceptance of this Agreement;
“Services” means the Maintenance & Support Services and the Software Service;
“Software” means the Idea Management software to which Wazoku will provide access to the Client;
“Software Service” means the provision, by Wazoku to the Client, of a service permitting the Users to access and Use the Software via the Portal and to use the Support;
“Software Service Fee” means the monthly fee payable by the Client to Wazoku for the Permitted Number, calculated in accordance with the Rate Card;
“Support” means the support and maintenance services in respect of the Software Service described at clause 5;
“Use” means use for the Client’s own internal business purposes and only to the extent necessary to receive the benefit of the Services as expressly contemplated hereunder;
“User” means the Client’s employees authorised to Use the Software Service under this Agreement;
“Website” means the website located at the following URL: www.wazoku.com
1.2 The headings are included for convenience only and shall not affect the interpretation or construction of this Agreement.
2. Provision of the Services
2.1 Wazoku hereby undertakes to provide or procure the provision of the Services to the Permitted Number, and the Client agrees to purchase the Services from Wazoku in accordance with the terms and conditions set out in this Agreement.
2.2 The Services shall be performed with reasonable skill and care in a manner consistent with generally accepted standards for identical or similar Services.
2.3 Subject to retrospective payment by the Client of an additional Software Service Fee the Client may increase the Permitted Number of users on the system at any time. This will be monitored by Wazoku Ltd and billed pro-rata accordingly.
2.4 Idea Spotlight works with the latest versions of all internet browsers: Chrome, Safari, IE9, Firefox 12. It is Wazoku’s intention to ensure Idea Spotlight will be compatible with any future releases of these internet browsers.
3. Maintenance & Support Services
3.1 Subject to the payment of the Maintenance & Support Fee and to all the terms of this Agreement, Wazoku may provide Maintenance & Support Services required by the Client in accordance with the Services Order Form, or as otherwise agreed between the parties in writing.
3.2 It is estimated that any Maintenance & Support Services shall commence on the relevant estimated start date and shall be completed by the applicable estimated completion date. The Client acknowledges that estimated start date(s) and estimated completion date(s) are estimates and are provided for information only, and are dependent on the Client’s performance of its obligations in accordance with this Agreement.
4. Software Services
4.1 Subject to the payment of the Charges by the Client, Wazoku hereby grants to the Client the non-exclusive, non-assignable, non-sub-licensable right to Use the Software Service and the Permitted Number to Use the Software Service for the term of this Agreement.
4.2 The Client shall, and procures that each User shall, use the Software Service only in accordance with the terms of this Agreement. The Client shall be responsible for all use of the Software Service by Users and shall be liable for breach of this Agreement by a User as if it were a breach by the Client.
4.3 The Client shall not, and shall procure that Users shall not, except as expressly permitted in this Agreement (i) modify, translate, create or attempt to create derivative copies of or copy the Software Service, the Software and/or the Portal in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software Service, the Software and/or the Portal to source code form; (iii) distribute, sub-licence, assign, share, timeshare, sell, rent, lease, transmit, grant a security interest in or otherwise transfer the Software Service, the Software and/or the Portal or the Client’s right to use the Software Service, the Software and/or the Portal.
5.1 Throughout the term of this Agreement, subject to payment of the relevant Charges (if applicable), Wazoku shall provide the following Support; 1) Online support via our Support Centre within the application will be available to customers at all times; 2) ticketing support will be offered at all times and we endeavour to respond within 24 (working) hours of the ticket being submitted. All tickets will be handled during normal business hours between 09.00 and 18.00 (UK time), Monday to Friday (excluding bank and public holidays):
(a) Responding to requests for advice on the use of the Software Service which may be submitted through the use of Wazoku’s Error ticketing system or support email address;
(b) the diagnosis of Errors in the Software Service and instructions as to the rectification of such Errors by email.
5.2 As soon as practicable after Client becomes aware of an Error, it shall:
(a) notify Wazoku by e-mail of the circumstances in which the Error arose and provide all additional available information to Wazoku regarding such Error; and
(b) if required, provide Wazoku with all access the Client’s system and audit logs necessary to enable Wazoku to rectify such Error.
5.3 Subject to clause 5.2 and provided always that the Client has paid the relevant Charges (if applicable) to Wazoku, Wazoku shall use its reasonable endeavours to respond to Client and provide a rectification to the Error.
5.4 The support shall not include the diagnosis and rectification of any Error resulting from:
(a) the improper use, operation or neglect of the Software Service, the Software or the Portal;
(b) the use of the Software Service, the Software or the Portal for a purpose for which it was not designed;
(c) a fault in the equipment or in Client or third party software or applications or any upgrade or new release in respect thereof;
(d) loss or damage caused directly or indirectly by operator error or omission; or
(e) rectification of lost or corrupted data arising for any reason other than Client’s own negligence.
5.5 Wazoku may agree upon receipt of a request by the Client to provide Support notwithstanding that the Error results from any of the circumstances described in clause 5.4 and/or in circumstances which are not covered herein. Wazoku shall in such circumstances be entitled to levy Additional Support Charges (together with any reasonable travel and out of pocket expenses incurred by Wazoku in respect of any on-site support provided) monthly in arrears and shall be paid by the Client (together with value added tax thereon) in accordance with clause 6.3.
5.6 All e-mail contact with Wazoku should be to the following e-mail address unless Client is notified to the contrary by Wazoku: email@example.com
6.1 In consideration for the provision of the Services, the Client shall pay the relevant and contracted Charges.
6.2 Wazoku intends to invoice the Client (i) for any Implementation Service Fees, on acceptance of this Agreement; (ii) for the Software Service and Maintenance & Support Fees quarterly in advance or as otherwise agreed Wazoku reserves the right to invoice at other times as it deems appropriate and in agreement with the Client.
6.3 The Client shall pay Wazoku all amounts due within 30 days of receipt of the invoice (the “Due Date”) against Wazoku’s standard payment terms or as otherwise agreed contractually.
6.4 All payments due under this Agreement shall be made in full, without any deduction, withholding, set-off or counterclaim on account of any taxes or otherwise.
6.5 Wazoku reserves the right to charge the Client interest on any payment not made by the Due Date. Interest will be calculated on a daily basis, both before and after any judgment, at the rate of 4 per cent per annum above the base rate from time to time of NatWest plc, for the period from the Due Date until the date on which it is actually paid, compounded quarterly and payable on demand.
6.6 In the event of a bona fide dispute regarding any invoice or other request for payment, the Client shall immediately notify Wazoku in writing and the parties shall attempt promptly and in good faith to resolve any dispute regarding amounts owed. The Client shall pay all undisputed amounts on the Due Date. Wazoku reserves the right to suspend performance of the Services until the dispute has been resolved.
6.7 Where relevant, all charges are exclusive of any applicable value added tax (or any successor tax) and any other applicable tax of any nature whatsoever.
6.8 Charges will be reviewed with Wazoku upon each contract renewal date. No increase may be made during the first year following the Effective Date, or for any period in respect of which the Client has made an advance payment.
6.9 All prices quoted are in GBP
6.10 The Service is billed on a quarterly in advance basis There will be no refunds or credits for partial months of service or refunds for months unused with an open account. If a payment has been made in error, please contact firstname.lastname@example.org as soon as possible.
7. Duration and Termination
7.1 This Agreement shall come into force on the Effective Date and shall remain in force, unless terminated in accordance with this clause 7, or with written notice of not more than (30) days after the expiration of the current Term. Wazoku may charge Client at pro rata standard rate for the number of days (if any) beyond the anniversary date and termination
7.2 Either party (the “Terminating Party”) may terminate this Agreement with immediate effect by written notice to the other party (the “Defaulting Party”) on or at any time after the occurrence of a material breach by the Defaulting Party of any of its obligations in this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 30 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so. For the avoidance of doubt, failure to pay Charges shall be a material breach.
7.3 The Terminating Party may terminate this Agreement with immediate effect by notice to the other party on or at any time after the occurrence of any of the events specified below in relation to the Defaulting Party:
(a) the Defaulting Party goes into liquidation either compulsorily or (except for the purpose of reconstruction or amalgamation) voluntarily;
(b) a receiver is appointed in respect of the whole or any part of the assets of the Defaulting Party;
(c) a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors; or
(d) the Defaulting Party threatens to do any of the things listed in Clauses 8.3 (a) to (c) or an administration order is made against the Defaulting Party or any similar occurrence under the laws of any jurisdiction affects the Defaulting Party.
7.4 On termination of this Agreement for any reason:
(a) Wazoku shall be entitled to be paid all sums due; and
(b) termination shall not affect the rights of either party accruing or accrued prior to the termination of this Agreement.
7.5 On termination of this Agreement for any reason this Agreement shall continue in force to the extent necessary to give effect to those of its provisions which expressly or impliedly have effect after termination, including but not limited to 6 (to the extent of any unpaid obligations), 7.4, 7.5, 8, 9, 11, 13.5, 13.6, 14, 15 and 18, and all other provisions necessary for their interpretation.
8. Intellectual Property
8.1 Wazoku has sole and exclusive ownership (or licence to use) all right, title, and interest in and to the Software and the Portal including all copyright and any other Intellectual Property Rights therein. Nothing in this Agreement will serve to transfer from Wazoku to the Client any of the Software or the Portal, and all right, title and interest in and to the Software and the Portal will remain exclusively with Wazoku and/or Wazoku’s licensors. All rights in and to the Software and the Portal not expressly granted to the Client are reserved by Wazoku and the relevant third party licensors.
8.2 Except for the rights expressly granted in this Agreement, nothing in this Agreement will serve to transfer from the Client to Wazoku any of the Client Material, and all right, title and interest in and to the Client Material will remain exclusively with the Client.
8.3 The Client grants to Wazoku a non-exclusive, worldwide, non-assignable, royalty-free licence to use the Client Material for the sole purpose of performing its obligations under this Agreement.
8.4 Nothing in this Agreement shall prevent Wazoku from using any know-how, methods, techniques or procedures owned or developed by Wazoku in the course of providing the Services for any purpose.
8.5 All third party Intellectual Property Rights required by the Client to enable them to Use the Software Service shall be procured by the Client. Wazoku shall not be liable for any delay or failure of the Client to procure such third party Intellectual Property Rights.
9. Warranties, Exclusions and Limitations of Liability
9.1 Wazoku cannot guarantee and does not warrant or represent that any specific results will be produced by the Software Service. Except as expressly set out herein, to the maximum extent permitted by law, Wazoku expressly excludes all representations, warranties, obligations and liabilities in connection with the Services, the Software and the Portal, including but not limited to the warranties of merchantability, non-infringement of intellectual property, accuracy, completeness, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade are hereby excluded and disclaimed.
9.2 Subject to clause 9.5, to the maximum extent permitted by law, Wazoku shall not be liable for any loss, injury, expenses, costs or damage caused in whole or part by, or resulting from:
(a) any failure, delay, interruption or otherwise of the provision of the Services; or
(b) the Client’s actions taken as a result of the use of or reliance on the Software Service.
9.3 Subject to clause 9.5, the maximum aggregate liability of Wazoku (including its respective agents and sub-contractors) under, arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed in aggregate the Charges paid by the Client to Wazoku in the twelve months prior to the date of the claim.
9.4 Subject to clause 9.5, in no event shall Wazoku be liable for:
(a) any loss of profits, loss of data, loss of business or business benefit, or the cost of procurement of substitute products or services by Client, business interruption, loss of management time, loss of use, loss of contracts, loss of opportunity, loss of goodwill (whether direct or indirect); or
(b) any special, indirect, incidental or consequential losses of any nature whatsoever; whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations hereunder, howsoever caused even if it is advised of the possibility of such loss.
9.5 For the avoidance of doubt, nothing in this Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraud or fraudulent misrepresentation.
9.6 Both parties accept that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.
9.7 This clause 9 shall survive the termination of this Agreement for whatever cause.
10. Force Majeure
10.1 If either party is prevented or delayed from or in performing any of its obligations under this Agreement by Force Majeure, then:
(a) its obligations under this Agreement (or, where the Force Majeure only affects some of the Services, such obligations as relate to those Services) shall be suspended for so long as the Force Majeure continues and to the extent that that party is so prevented, hindered or delayed;
(b) the parties shall, without prejudice to the other provisions of this Clause 10.1 consult with a view to taking such steps as may be appropriate to mitigate the effects of such Force Majeure;
(c) that party shall use all reasonable efforts to mitigate the effects of the Force Majeure upon the performance of its obligations under this Agreement.
10.2 If any Force Majeure prevails for a continuous period in excess of 2 months, either party shall be entitled to terminate this Agreement in its entirety (if all Services are affected by Force Majeure) or in part (insofar as it relates to the Services affected by Force Majeure) by giving not less than 10 working days’ notice in writing to the other party.
11.1 Each party (the “Receiving Party”) shall use its reasonable endeavours to keep confidential the provisions of this Agreement and all information and documentation disclosed by the other party (the “Disclosing Party”), before or after the date of this Agreement, to the Receiving Party or of which the Receiving Party becomes aware which in each case relates to any software, operations, products, processes, dealings, trade secrets or the business of the Disclosing Party (including without limitation all associated software, specifications, designs and graphics) or which is identified by the Disclosing Party as confidential (the “Confidential Information”) and will not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement. The Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party.
11.2 During the term of this Agreement the Receiving Party may disclose the confidential information to its employees and sub-contractors (any such person being referred to in this Clause as the “Recipient”) to the extent that it is reasonably necessary for the purposes of this Agreement. The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Agreement as if the Recipient was a party to this Agreement.
11.3 The obligations contained in Clauses 11.1 and 11.2 shall not apply to any Confidential Information which is:
(a) at the date of this Agreement already in, or at any time after the date of this Agreement comes into, the public domain other than through breach of this Agreement by the Receiving Party or any Recipient;
(b) furnished to the Receiving Party or any Recipient without restriction by a third party having a bona fide right to do so; or
(c) required to be disclosed by the Receiving Party by law or regulatory requirements of any stock exchange, provided that the Receiving Party shall give the Disclosing Party as much notice as reasonably practicable of the requirement for such disclosure.
11.4 All tangible forms of Confidential Information, including, without limitation, all summaries, copies, excerpts of any Confidential Information whether prepared by the Disclosing Party or not, shall be the sole property of the Disclosing Party, and shall be immediately returned by the Receiving Party to the Disclosing Party or destroyed upon the Disclosing Party’s request or the termination of this Agreement (whichever is earlier). The Receiving Party shall not copy, reproduce, publish or distribute in whole or in part any Confidential Information without the prior written consent of the Disclosing Party.
12. Publicity and Marketing
12.1 Client agrees that Wazoku may refer to the Client as a client of Wazoku and refer to the type of services that Wazoku has provided to the Client.
12.2 Client agrees that Wazoku may publish and circulate a case study describing the Services supplied by Wazoku to the Client (for use by Wazoku as a marketing tool).
13. Client’s Obligations
13.1 The Client shall perform its obligations as set herein, including, without limitation to provide Wazoku promptly with all necessary co-operation, information and data and access to staff and timely decision making which may be reasonably required by Wazoku for the performance of the Services.
13.2 The Client hereby acknowledges and agrees that it is responsible for issuing user names and passwords to the User(s). Wazoku shall not be liable for (i) any delay or failure by the Client or User to issue or accept such user names and passwords; or (ii) verifying whether the Client and User Data is correct and accurate or whether the usernames and passwords are sufficiently secure.
13.3 The Client hereby acknowledges and agrees that it is and the Users are solely responsible for procuring and paying for access to the internet to enable them to use the Services.
13.4 The Client hereby grants Wazoku a non-exclusive, worldwide, royalty-free licence to use, copy, cache, store and display and reproduce the Client and User Data (including all Intellectual Property Rights therein) for the purposes of fulfilling its obligations under this Agreement.
13.5 The Client hereby represents, undertakes and warrants that, and shall procure that each User represents, undertakes and warrants that:
(a) the Client and/or the User owns all rights in the Client and User Data necessary to grant Wazoku the right to carry out its obligations pursuant to this Agreement;
(b) the Client and User Data does not and will not contravene or breach any applicable law, regulation code of practice or directive including, without limitation, investment or financial services legislation or consumer or trade regulation or data protection legislation or regulation and that the use of the Client and User Data will not contravene any applicable law, regulation or industry standard; and
(c) the Client and User Data does not and will not infringe any Intellectual Property Rights or other rights of any person, nor are they obscene, defamatory, libellous or slanderous, nor will it cause injury to, invade the privacy of or otherwise violate other rights of any person;
(d) all information supplied by the Client for the purpose of registering the User(s) is true, complete and accurate in all respects and it shall notify Wazoku as soon as reasonably practicable of all changes to such information;
(e) it shall keep and, where relevant, shall procure that all its employees and/or agents keep confidential the usernames and passwords;
(f) it shall procure that no unauthorised access to and/or use is made of the Software Service and utilising the username or password allocated to the Client and/or each User;
(g) it shall be liable for all access to and use of the Software Service whether authorised by the Client or any User or not; and
(h) it shall inform Wazoku immediately if it has any reason to believe that the username and password has become known to any individuals not authorised to use them or if the Software Service and are being or are likely to be used in an unauthorised way.
13.6 Client shall use reasonable endeavors to ensure that all information contained in the Client Material and the Client and User Data shall be true, accurate and complete. For the avoidance of doubt, Client hereby acknowledges and agrees that:
(a) Client shall be responsible for verifying the Client Material and the Client and User Data prior to its provision to Wazoku or its use within the Software Service; and
(b) Wazoku shall bear no responsibility or liability for checking the Client Material and the Client and User Data prior to or during its use by Wazoku or within the Software Service pursuant to this Agreement.
13.7 In the event that the Client is in breach of this clause 13, Wazoku, without prejudice to any other rights it may have in respect of such breach, may suspend the provision of the Services without notice and shall not be liable for any such suspension of the Services.
13.8 Wazoku shall not be liable for any delay or failure to perform its obligations hereunder which arise as a result of a failure by the Client to comply with this Clause 13. The Client hereby fully indemnifies and undertakes to keep Wazoku (and its employees, directors and agents) fully indemnified forthwith on demand against any actions, claims, losses, liability, proceedings, damages, costs, expenses, loss of business, loss of profits, business interruption and other pecuniary or consequential loss howsoever arising (including reasonable legal costs and expenses) and suffered or incurred by Wazoku arising directly or indirectly out of any breach or alleged breach of any of the Client’s obligations under this Agreement.
14. Data Protection
14.1 The Client shall procure that its use of the Software Service is compliant with all relevant statutory provisions, including but not limited to e-commerce, data protection, fraud and anti-money laundering regulations.
14.2 For Personal Data processed by Client using Software Service the Client undertakes to act in accordance with the provisions of the Data Protection Act 1998.
14.3 The Client and Wazoku acknowledge and agree that the Client is the data controller and that Wazoku is a data processor in respect of the Data (as such terms are defined in the Data Protection Act 1998). The Client therefore confirms that it is solely responsible for ensuring that any data processing and security obligations under this Agreement comply with applicable data protection law and anti-money laundering regulations. Wazoku will only process Personal Data for the purposes of providing the Client with the Services and. Wazoku has in place and will maintain for the duration of these terms and conditions appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, or disclosure of Personal Data and adequate security programmes and procedures to ensure that unauthorised persons do not have access to any equipment used to process Personal Data.
14.4 The Client hereby indemnifies Wazoku in full and on demand against all losses, liabilities, damages, costs, claims and expenses (including but not limited to legal costs) arising from or incurred by Wazoku as a result of any failure of the Client to comply with this clause 14.
15.1 This Agreement hereto constitutes the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement.
15.2 Each of the parties acknowledges that in entering into this Agreement on the terms set out herein it has not relied on or been induced to enter into this Agreement by any representation, warranty, undertaking, promise or assurance made or given by any other party or any other person, whether or not in writing, at any time prior to the execution of this Agreement other than those expressly set out in this Agreement.
15.3 If any part of any provision of this Agreement shall be invalid or unenforceable, then the remainder of such provision and all other provisions of this Agreement shall remain valid and enforceable.
15.4 Nothing in this Agreement or any document referred to in it or any arrangement contemplated by it shall be construed as creating a partnership between the parties for any purpose whatsoever and neither party shall have the power or authority to bind the other party or impose any obligations on it to the benefit of any third party.
15.5 The parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
15.6 The Client may not assign any of its rights under this Agreement without the prior written consent of Wazoku .
15.7 This Agreement shall be construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts to settle any disputes, which may arise in connection with this Agreement.
15.8 Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be:
(a) delivered in person; or
(b) sent by registered mail return receipt requested; or
(c) sent by overnight air courier; or
(d) transmitted by facsimile
in each case forwarded to the appropriate address set forth herein. Either Party may change its address for notice by written notice to the other Party. Notices will be considered to have been given at the time of actual delivery in person, or three (3) business days after posting, or one (1) day after (i) delivery to an overnight air courier service or (ii) the moment of transmission by facsimile with receipt of such facsimile confirmed by telephone by the intended recipient.