1. INTRODUCTION
1.1 As
of the Effective Date, CipherWave shall be responsible for the maintenance and
support of Customer’s Managed Hosting Services and Networking Solutions as
detailed in terms of the MSA, the Service Order/s which may be signed from time
to time.
1.2 This
Agreement sets out the terms and conditions, including the services to be
provided and the terms and conditions applicable to those services, between the
Service Provider and the Customer.
1.3 In
the event of there being any conflict between the MSA and any other documents
signed between the Customer and the Service Provider, then, in that event, the
terms of the MSA will prevail.
2.
DEFINITIONS
2.1 “Agreement”
means the MSA, the Subscriber Application Form, together with any annexures
annexed thereto.
2.2 “Customer”
means the party to this agreement and to any subsequent Service Order which may
be signed by the Customer and/or the Customer's duly authorised representative.
2.3 “Charges” The
connection charges, monthly service charges, usage charges and any other
charges pertaining to the provision of the Services and any other service(s)
provided to the Subscriber in terms of the Agreement.
2.4 “CipherWave
Service Centre” means any Service Centre of CipherWave in
South Africa. There is currently a Centre at CSS House, 28 Augrabies Road,
Waterfall Office Park, Vorna Valley, Midrand.
2.5 “Commissioning
of the Services” The completion of installation and tests by
network installation technicians confirming that the service is operational.
2.6 "Completion
Certificate" means the Certificate sent through by the
Service Provider to the Customer confirming that the Service Provider is now in
a position to provide the services as set out in this agreement and/or the
Service Order/s. A specimen of the Completion Certificate is annexed hereto as
Annexure "B".
2.7 “CPA” means the Consumer
Protection Act No. 68 of 2008
2.8 “Days” means Monday to Friday
unless the particular context indicates otherwise.
2.9 “Delegated
Service Provider” Any Reseller who has been appointed by the
Service Provider and who performs credit vetting, approves credit, concludes
agreements, and directly bills the Subscriber or the end user for the Services.
2.10 “Effective
Date”
means, notwithstanding the date of signature of this MSA and its annexures, but
rather the date stated as effective date on the Completion
Certificate if the Completion Certificate is not objected to within 5 (five)
days of the Completion Certificate being sent by the Service Provider to the
Subscriber and/or Customer. In the event of the Subscriber and/or Customer
objecting to the Completion Certificate then the effective date shall be the
date stated as effective date on the revised, signed
and accepted Completion Certificate by the Subscriber and/or Customer.
2.11 “EFT”
Electronic Fund Transfer.
2.12 "Extension of Renewal Period" means
the renewal of the MSA for the period of the Renewal Period as set out in
paragraph 3.1.4 of the agreement.
2.13 “Initial
Period” means the period as indicated and as set out in the
Service Order/s, signed from time to time by the Customer. That period shall be
your Initial Period.
2.14 “In writing”
includes signing a Service Order, Product and Services Schedule Order, sending
a letter by registered post, sending an e-mail to the applicable/correct e-mail
address, and, in the case of an e-mail being sent by the Customer to the
Service Provider, in writing shall only be achieved when the Service Provider
and/or the target addressee has acknowledged receipt of the e-mail, and, any
other form of tangible or printable communication which the Service Provider
deems suitable and which is totally in the sole discretion of the Service
Provider.
2.15 "Master
Service Agreement" (MSA) means this agreement, the Subscriber
Application form and all annexures to the agreement.
2.16 “Mobile
Access Numbers” The mobile access number(s), IP address(es),
unique user name(s) or subscription number(s) used to identify Subscribers
having access to the Services.
2.17 “Network
Operator” which has granted the Service Provider authorisation to
make the Services available to the Subscriber.
2.18 “Normal
Business Hours” means the hours between 08h00 and 17h00
Monday to Friday, excluding public holidays in the Republic of South Africa.
2.19 “Parties”
refers to CipherWave and the Customer and “Party” refers to either one of them
as so determined by context.
2.20 “Remote
support” includes telephonic support, e-mail support, remote
access to all links and all other support, except on-site support.
2.21 "Renewal
Period" means the renewal of the Initial Period of
which Initial Period is set out in the Service Order in the event of no
termination and/or notification being given as contemplated in paragraph 3.1.1.
2.22 "Reseller"
means
a third party appointed by the Service Provider for the providing of services
to any third party.
2.23 “Service Order/Order”
means an order placed by a Subscriber and/or Customer with the Service Provider
for the provision of Services as set out in that Service Order. It is
specifically agreed by the Customer and/or the Subscriber that the signature to
the Service Order shall constitute a binding agreement on it/them to be bound
to the terms and conditions of this agreement. A copy of the Service Order is
annexed hereto as Annexure "A".
2.24 “Service
Provider” Cipherwave Business Solutions Africa (Pty) Ltd.
2.25 “Services” means the
managed hosting services and networking solutions that will be provided by the
Service Provider to the Customer and/or Subscriber.
2.26 “Subscriber”
means any party to whom the Services are made available in terms of this
Agreement, including a Delegated Service Provider who on-sells the Services and
bills an end user directly.
2.27 “Terminal
Equipment” any equipment provisioned and supplied by the Service
Provider.
2.28 “Time to
Respond” means the time that would lapse between the Customer
logging the service ticket and the Remote/On-Site Response.
2.29 “Uptime
Service” means the time that the Customer’s hosted servers are
live and operational, and the links provided under the Subscriber Agreement
between CipherWave and the Customer are active and able to pass traffic.
2.30 “VAT”
Value Added Tax as provided in the Value Added Tax Act 89 of 1991.
3.
COMMENCEMENT AND TERMINATION
3.1 The
Agreement shall commence on the Effective Date, and, shall continue for the
Initial Period as set out on the Service Order/s, which will, from time to time
(depending on how many are signed) form part of this agreement. This agreement
shall terminate after the Initial Period provided that the Customer has
complied with the below mentioned, failing which, the agreement shall continue
on a month to month basis. The Subscriber may terminate this agreement by:
3.1.1 The Subscriber, on the expiry of the Initial Period, or,
subsequent periods, as the case may be, by giving to the Service Provider a
written notice of termination not less than one calendar month and not more
than 90 days before the expiration of the Initial Period or the subsequent
periods, as the case may be; and/or
3.1.2 The Service Provider may terminate this
agreement, on written notice of a minimum 30 calendar days to the Subscriber in
the event that the authorisation issued by the Network Operator in terms of
which the Service Provider is authorised and empowered to give the Subscriber
access to the Services is terminated for whatever reason.
3.1.3 Notwithstanding the contents of paragraph 3.1.2, it is hereby
agreed between the Service Provider and the Customer that the Service Provider
may, on providing a minimum 30-day Calander notice, terminate any and all
services as provided in this agreement.
3.1.4 It is agreed that in the event of the Customer not providing
notice as set out in paragraph 3.1.1, in such event, the services provided by
The Service Provider, will continue on a month to month basis and requiring 90
days’ notice for termination.
3.1.5 It is agreed that in the event of cancellation of contracted
services, the customer will be liable for a penalty to the value of the remaining
contract value still under contract
3.2 It
is agreed that the Service Order/s by the Subscriber a n d / o r C u s t o m e
r is an offer made by the Subscriber and/or Customer to the Service Provider. The
Service Provider’s acceptance of the Service Order in may place limited
obligation on the Service Provider to render support services as set out in the
Service Order until such time as the Completion Certificate has either been
signed by the Subscriber, alternatively, the
lapsing of the 5 (five) days of sending of the Completion Certificate to the
Subscriber. It is specifically recorded that once the Service Order has been
delivered to the Service Provider, that it cannot be withdrawn pending the
issuing of the Completion Certificate.
Initial:
3.3 The
contents of paragraph 3.2 shall not apply to a Customer and/or Subscriber in
the event of the Service Provider already providing the services so requested
by the Customer and/or Subscriber in their Service Order/s. It is however
agreed that the final decision in whether the Service Provider is already
providing that service is solely within the discretion of the Service Provider.
Initial:
3.4 The
Customer and/or Subscriber may not, for any reason whatsoever and irrelevant of
circumstances, terminate this MSA and/or any Service Order and/or demand any
reimbursement, including but not limited to, damages whether direct or
indirect, as a result of the Subscriber’s relocation to an area outside of the
Service Provider’s coverage. In the event of the Customer and/or Subscriber
terminating this MSA or any Service Order as a result of circumstances as
mentioned in this paragraph shall immediately result in the Service Provider
being entitled to claim for the full amount of the Initial Period, Renewal
Period and/or Extended Renewal Period.
Initial:
3.5 At
the time the Subscriber signs the Application form or Order for the provision
of Services, the Subscriber agrees that they are entering into a legally
binding Agreement.
3.6 Early Termination
3.6.1 An early termination fee shall become
payable by the Customer and calculated on the outstanding fees and charges for each
Service under a Service Schedule terminated (“Terminated Services”) as at
the early termination date, and calculated as follows:
3.6.1.1 in
the event that the Terminated Services are terminated prior to the Effective
Date of the Service Schedule, the Customer shall be liable for the lower of:
3.6.1.2 the
actual costs incurred by the Service Provider in the fulfilment of the
Services; or
3.6.2 the Installation Fee and 3 (months) months
of monthly recurring cost.
3.6.3 in
the event that the Terminated Services are terminated subsequent to the Effective
Date but at any time prior to the end of the Service Schedule Initial Period of
the Service Schedule, then the Customer shall:
3.6.3.1 pay the Service Provider the difference
between the fee paid for the Terminated Services until the date of termination
thereof; and
3.6.3.2 the
fee that would have been paid to the Service Provider in the event that the
contract term of the Terminated Services was for the full period from the
Effective Date until the date on which the Service Schedule would have
ordinarily terminated i.e. the full balance outstanding of the Service
Schedule.
3.6.4 The amounts referred to in this clause 3.6.3
shall be in addition to all fees and charges payable in the ordinary course in
respect of the applicable Service Schedule for the Terminated Services in
addition to any other Services that continue unchanged on other Service
Schedules, as at the effective date of termination.
4. SUPPLY AND INSTALLATION OF TERMINAL
EQUIPMENT AND SERVICES
4.1 The
Service Provider shall utilise its best endeavours to promptly comply with any
supply and/or delivery and/or installation requirements recorded in the Service
Order, however, shall not be liable to the Customer and/or Subscriber in the
event that such supply and/or delivery and/or installation is delayed or
cancelled, for whatever reason.
4.2 The
Service Provider in its sole discretion may refer the Customer and/or
Subscriber to a third party who may, through an agreement with the Customer
and/or Subscriber, undertake the installation of the terminal equipment on its
(the Customer's and/or Subscriber's) own behalf and not as an agent of the
Service Provider. 4.3 Notwithstanding the contents of paragraphs 4.1 and 4.2,
it is specifically agreed between the parties that the Service Provider may,
after providing a 30 calendar day notice, within its sole discretion due to
circumstances that may arise beyond the control of the Service Provider, even
post acceptance of the Service Order, terminate any services so provided in
terms of that Service Order. It is further agreed that, notwithstanding such
termination, that the Customer and/or Subscriber hereby fully indemnifies the
Service Provider against any losses which the Customer and/or Subscriber and/or
its Employees and/or its Agents may suffer as a result of the cancellation
and/or non-compliance of the Service Order and it is further agreed that the
Service Provider shall not be liable in any way howsoever to the Customer
and/or Subscriber for any loss and/or damage, whether direct, indirect or
consequential that may be suffered by the Customer and/or Subscriber in the
event of the cancellation of the Service Order.
This indemnification shall also apply in the event of the Service
Provider being required to install any equipment at the premises of the Customer
and/or Subscriber in order for the Service Provider to provide the services.
Initial:
4.4 The
Subscriber shall be solely responsible for the obtaining of all necessary
approvals, certificates, qualifications and/or any authorities imposed by any
competent authority and/or as required by law which may be required for the
purpose of any supply and/or delivery and/or installation as contemplated in
this agreement. The Subscriber hereby indemnifies and holds the Service
Provider, its agents, employees and directors against any claim or liability
that may be suffered by the Subscriber and/or its employees and/or agents,
howsoever arising, specifically but not limited to any such approval and/or
authority and/or requirement not been obtained as set out in this paragraph.
4.5 The
Subscriber acknowledges that the Service Provider may, from time to time, have
to change and/or alter the Terminal Equipment in order to ensure that the
Service Provider can provide its Services and to ensure that it remains updated
with technological evolution and/or progress, and, the Subscriber irrevocably
agrees and undertakes that it will grant the Service Provider access to its
premises in order to discharged its obligations in terms of this
Agreement. The Subscriber hereby agrees
to accept 24 hours' notice in respect of the requirement or the access needed
by the Service Provider.
4.6 The
Subscriber hereby guarantees and undertakes in
favour of the Service Provider that the Subscriber:
4.6.1 Shall
not use or allow the Services to be used for any improper, immoral or unlawful
purpose, or in any way which may cause injury or damage to persons, property
and/or an impairment or interruption of the Services.
4.6.2 Shall use only the terminal equipment
provided by Service Provider and comply with relevant legislation and
regulations imposed by any competent authority and all directives issued by
Service Provider relating to the use of terminal equipment and the provision of
Services.
4.6.3 Recognises
that no right, title or interest in the software contained in the terminal
equipment issued to the Subscriber vests in the Subscriber.
4.7 Shall
not itself or permit any third party to reverse engineer, decompile, modify or
tamper with the software and/or hardware contained in or pertaining to any
terminal equipment.
5. SERVICE LEVELS
PROVIDED BY SERVICE PROVIDER
5.1 The
Service Provider shall provide a Managed Hosting Service and a Networking
Service on the Products and Services detailed in Schedule "A" annexed
hereto, and, shall provide services as per the agreed and accepted Service
Orders which will form part of this agreement from time to time.
5.2 Description
of Bronze Level – This is the default level applicable to
CipherWave services and is provided at no additional cost to Customer. This
service level provides for a next business day response on site during Normal
Business Hours, subject to the distance between Customer’s site and the nearest
CipherWave Service Centre. A service ticket for assistance will be qualified
within 4 (four) hours of receipt thereof by the Service Centre. Remote support
will be provided, where available, within a 4 (four) hour response time after
the service ticket has been qualified. After-hours is regarded as being between
17:00 and 08:00. CipherWave will provide the labour, parts and equipment
required and travel to the Customer’s site to undertake the necessary
maintenance of equipment covered under the Schedule. Equipment that is owned by
Customer and does not fall within warranty will be invoiced out to the Customer
at a nominal rate. CipherWave reserves the right to invoice the Customer at
market related pricing for any consumables required and used out of necessity.
5.3 Description
of Silver Level - This service level provides for a same day
response on site during Normal Business Hours and a next business day response
if call is logged after-hours, subject to the distance between Customer’s site
and the nearest CipherWave Service Centre. A service ticket for assistance will
be qualified within 2 (two) hours of receipt thereof by the Service Centre. Remote
support will be provided, where available, within a 2 (two) hour response time
after the service ticket has been qualified. After-hours is regarded as being
between 20:00 and 06:00. CipherWave will provide the labour, parts and
equipment required and travel to the Customer’s site to undertake the necessary
maintenance of equipment covered under this Schedule. Equipment that is owned
by Customer and does not fall within warranty will be invoiced out to the
customer at a nominal rate. CipherWave reserves the right to invoice the
Customer at market related pricing for any consumables required and used out of
necessity.
5.4 Description
of Gold Level - This service level provides for a 2 (two)
hour response on site during Normal Business Hours or a 4 (four) hour response
outside of Normal Business Hours, subject to the distance between Customer’s
site and the nearest CipherWave Service Centre. A service ticket for assistance
will be qualified within 1 (one) hour of receipt thereof by the Service Centre.
Remote support will be provided, where available, within a 1 (one) hour
response time after the service ticket has been qualified. No after-hours
periods applies to this service level. CipherWave will provide the labour,
parts and equipment required and travel to the Customer’s site to undertake the
necessary maintenance of equipment covered under this Schedule. Replaced
equipment that is owned by Customer and does not fall within warranty will be
invoiced out to the customer at a nominal rate. CipherWave reserves the right
to invoice the Customer at market related pricing for any consumables required
and used out of necessity.
5.5 Description
of Platinum Level – custom service level agreements can be
negotiated on a case by case basis with Customer depending on their specific
requirement/s and must be attached as an Annexure to this Master Service
Agreement.
5.6 Notwithstanding
Cipherwave’s undertaking regarding response times in the Service Levels stated
above, where necessary, should the work (including travelling time) extend
outside of the specified hours per service level above, the Customer will be
offered the option of paying an overtime surcharge to allow work to continue to
completion and provide a purchase order number to CipherWave, or to postpone
the repair until recommencement of the specified hours per service level above.
5.7 Service
Level Priorities
5.7.1 Priority 1: Customer is unable to do their business as a
result of complete or partial system failure.
5.7.2 Priority 2: The
problem has high visibility and impacts on the way Customer does business. The
service is disrupted but not halted. The system performance may be degraded and
some functions may not operate correctly.
5.7.3 Priority 3: A single user or
small percentages of users are affected.
5.7.4 Priority 4: Changes or updates are
required to the current system
5.7.5 Remote and
Onsite Support: Prior to any onsite support an engineer will
attempt to determine and resolve the problem via remote access where practical
and Customer shall provide the remote access via the LAN/WAN to the onsite
systems.
5.8 Service Level Reaction Times
Priority Onsite Remote CipherWave DC
Priority
1 2 1 1
Priority
2 4 2 2
Priority
3 8 4 4
Priority
4 16 12 12
The above time is
expressed in working hours.
5.9 CipherWave
will not provide support at no cost for every problem/request that Customer may
encounter or create while using its services. Support issues not covered under
Customer’s individual plan as defined in this MSA, and/or the Service Order,
may be billed at an hourly rate of R850 per hour ex VAT. CipherWave
is committed to help Customers resolve any troubles or issues requiring
Cipherwave’s help or expertise. CipherWave will not bill for support without
prior notification and approval in writing thereof by Customer. It is agreed
that costings may vary according to each Customer's individual plan of which
costings and/or amendments thereto are set out on the price list which is
published from time to time on the Service Provider's website.
6. SERVICES TO BE
PERFORMED BY CIPHERWAVE
6.1 CipherWave
Network Availability and Uptime
6.1.1 CipherWave undertakes that its Network and Connectivity shall be
made available with a minimum uptime of 99.5% measured monthly. This
undertaking covers the availability of all network connectivity beyond the
first point of entry from the Customer into the CipherWave Data Centre.
6.1.2 CipherWave
Broadband Services are provided on a best effort basis whilst Layer 2 and Layer
3 Connectivity services are provided with an availability SLA of 99.5%
calculated over a month average.
6.1.3 CipherWave does not inherently provide any uptime undertakings
associated with any last mile connectivity between the Customer and the
CipherWave Data Centre other than that mentioned in 6.1.2. Services such as ADSL, IPConnect, Diginet, etc.
are excluded from any uptime undertakings unless specifically stated within the
schedule attached. Special condition SLAs can be considered for last mile
connectivity mediums other than those mentioned in 6.1.2 at an additional
monthly cost to the Customer. Any special condition SLAs must be stated in the
attached schedule of services.
6.1.4 The
Customer is obliged to raise the service ticket and the time calculation will
be determined from the time the call was logged, until the service is restored.
Credits will only be paid subject to the correct procedure for the raising of a
service ticket.
6.1.5 Access to customer’s premises and installation
of the Client Premise Equipment (CPE ) device:
Where installation of the CPE is required to be undertaken,
the Customer shall, whenever required by Service Provider, ensure that Service
Provider’s personnel or contracted installer, be permitted access to the
Customer’s premises and to remain at such premises –
6.1.5.1 to carry out any
inspection, repair, testing or maintenance of the CPE and other equipment
relevant to the provision of the Service; and/or
6.1.5.2 to verify that the
manner in which the Service is being utilised by the Customer is in compliance
with the General Terms and Conditions, this Service Schedule and applicable
South African laws, rules and/or regulations; and/or
6.1.5.3
to install, collect or remove the CPE;
and/or
6.1.5.4
for any other reasonable purpose
whatsoever.
6.1.6 To enable the installation of the CPE and any other equipment
necessary for the provision of the Service, the Customer shall –
6.1.6.1 Provide a suitable
environment for the housing of the CPE and any other ancillary equipment
together with all required trunking, electricity and connection points,
conduits, cable trays and power supply in accordance with the relevant
installation standards and manufacturers’ instructions; and
6.1.6.2 Take up or remove such
fitted or fixed floor coverings, ceiling tiles, suspended ceiling and partition
covers as may be necessary to install the CPE and/or ancillary equipment and
carry out the making good of decorator’s work required subsequent to such
installation.
6.1.7 The Customer shall be present at any installation of the CPE by
Service Provider personnel or contracted installer and shall sign the
installation completion certificate on completion thereof.
6.2 Dedicated
Internet Services Availability and Uptime
6.2.1 The Availability Service Level for Dedicated Internet Service is 99.5%.
Dedicated Internet Service is considered unavailable if the Primary Port (the
main physical port on a network device to which we deliver network services
e.g. internet, layer-2, MPLS, etc.) is unable to send or receive traffic.
Primary refers to the port configured to be used for the network service
delivery in normal optimal operational conditions i.e. not a redundant port or
disaster recovery link.
6.2.2 In the event that Dedicated Internet Service becomes unavailable
for reasons other than an Scheduled Outage, Customer will be entitled to a
Service Credit off of the sum of (i) the monthly port charge for the affected
port (if applicable), and (ii) the actual usage charges, if any, (calculated on
a Megabit basis at the contracted-for price per Megabit) associated with the
affected port for the particular month. Service Credits, in each case, are
based on the cumulative unavailability of the affected port in a given calendar
month as set forth in 6.9 Service Credits.
6.2.3 Delay (Latency).
CipherWave commits to average (in a calendar month) latency between the
Internet access routers of no more than the latency figures in the table below.
If delay exceeds these objectives, except as the result of an Scheduled Outage,
Customer will be entitled to a Service Credit off of the monthly port charge
for the affected port as set forth below:
|
Route |
Dedicated Internet Service |
|
Local Internet Access |
<
80 ms |
|
International Internet Access
(UK) |
<350
ms |
|
Delay Exceeding Objective |
Service Level Credit |
|
0.1% – 10% |
10% |
|
10.1% – 20% |
30% |
|
20.1% or greater |
50% |
6.2.4 Packet Delivery refers to network data packets being
successfully sent from a sender IP address to a receiver IP address and acknowledged as successful. The packet
delivery objective is 99.5%. Packet delivery is measured as the average number
of IP packets transiting the CipherWave network that are delivered to the
intended destination on the CipherWave network. Measurements are over a
calendar month, and performance statistics for this SLA will be measured from
Cipherwave’s monitoring systems and compiled into a monthly report. If packet
delivery exceeds these objectives except as the result of an Excused/Scheduled
Outage, Customer will be entitled to a Service Credit off of the sum of (i) the
monthly port charge for the affected port (if applicable), and (ii) the actual
usage charges, if any, (calculated on a Megabit basis at the contracted-for
price per Megabit) associated with the affected port for the particular month
as set forth in 6.9 Service Credits.
6.2.5 Any
unavailable service precluding access to other services except as the result of
an Excused/Scheduled Outage, Customer will be entitled to a Service Credit off
of the monthly service charge for the affected service/s as stipulated in the
table in 6.9 Service Credits.
6.3 Broadband
Internet Services Availability and Uptime
6.3.1 The Availability Service Level for Broadband Internet Services
delivered over Fibre and/or Wireless is 99.5%. Broadband Internet Service is
considered unavailable if the Customer is unable to send or receive traffic
from the on-premise CipherWave Managed Router and normal environmental
conditions (i.e. power available, etc.).
6.3.2 All You Can Eat (usage based billing) Broadband Internet Services
are an uncontended internet service and CipherWave undertakes average bandwidth
speed within 10% of the subscribed Committed Information Rate (CIR) of the
Broadband Internet Service.
6.3.3 Uncapped Broadband Internet Services are a best effort contended
service and CipherWave undertakes average bandwidth speed within 30% of the
subscribed Committed Information Rate (CIR) of the Broadband Internet Service.
6.3.4 Fibre based Broadband Internet Services are uncontended between
the Customer site and the CipherWave Data Centre, unless explicitly stated and
CipherWave undertakes the average bandwidth speed between the Customer site and
the CipherWave Data Centre within 10% of the subscribed Committed Information
Rate (CIR) of the Fibre link.
6.3.5 In the event that Broadband Internet Services becomes unavailable
for reasons other than an Excused/Scheduled Outage, Customer will be entitled
to a Service Credit off of the sum of (i) the line rental (fibre/wireless), and
(ii) the router rental. Service credits will not apply to any bandwidth usage
for All You Can Eat services. Service Credits, in each case, are based on the
cumulative unavailability of the affected service in a given calendar month as
set forth in 6.9 Service Credits.
6.4 Infrastructure
Availability and Uptime
6.4.1 CipherWave undertakes that its infrastructure shall be made
available with a minimum uptime of 99.5% measured monthly. This undertaking
covers the availability of all power requirements, components, HVAC, fire
suppression, security systems, UPS/PDU, appliances, power cabling, and other
infrastructure or equipment, now or in the future, deemed as a requirement for
maintaining the network infrastructure and providing Cipherwave’s services to
Customer. If minimum uptime does not meet these objectives except as the result
of an Scheduled Outage, Customer will be entitled to a Service Credit off of
the monthly service charge for data centre co-location services affected by the
outage as stipulated in the table in 6.9 Service Credits. However, it is
specifically agreed that these Service Credits, and the granting of them, is
solely within the discretion of the Service Provider.
6.4.2 CipherWave will monitor the environmental attributes of the data
center to ensure that temperature parameters undertakes 99.5% availability of
26oC +/- 4oC and a relative
humidity of 30% +/- 10%, where relative humidity is
defined as the ratio of water vapour density (mass per unit volume) to
saturation water vapour density, expressed in a percentage. If environmental
attributes does not meet these objectives except as the result of an Scheduled
Outage, Customer will be entitled to a Service Credit off of the monthly
service charge as stipulated in the table in 6.9 Service Credits. However, it
is specifically agreed that these Service Credits, and the granting of them, is
solely within the discretion of the Service Provider.
6.4.3 Both temperature and humidity are daily averages measured in the
return air path by the installed building management system.
6.4.4 Condition: Equipment to be
installed according to supplier’s recommendations, but with no less than 1U
clearance between rack mounted units.
6.4.5 Any unavailable service precluding access to other services
except as the result of an Scheduled Outage, Customer will be entitled to a
Service Credit off of the monthly service charge for the affected service/s as
stipulated in the table in 6.9 Service Credits.
6.5 Co-Location Availability
and Uptime
6.5.1 The
Customer will supply their own Server which shall be placed at the Service
Provider hosting facility and the Customer shall be responsible for configuring
the Server to meet their own specific requirements.
6.5.2 The
Customer remains solely responsible for all aspects of the Server. Service
Provider will be and undertakes to attend to the responsibilities as set out in
paragraph 4, however, it is specifically agreed that the Customer leaves its
server at the Service Provider's hosting facility at their absolute sole risk. In
the event of there being any damage to the Server for any reason whatsoever,
which shall include any non-compliance with paragraph 4, alternatively, theft
and/or fire or for any reason whatsoever, the Customer fully indemnifies and
hold the Service Provider harmless for any losses and/or any form of damage
howsoever arising in respect to hosting the Server. In this regard the Customer
is referred to paragraph 12 of this agreement which pertains to the limitation
of liability and the paragraphs contained therein are repeated herein.
6.5.3 The
Customer remains solely responsible for the bandwidth and traffic management of
the Server. The traffic management and reporting tools provided by Service
Provider are provided to assist in this process, but do not absolve the
Customer of responsibility nor place any such responsibility on Service
Provider.
6.5.4 Should the Subscriber’s Server become the target or source of any
form of Distributed Denial of Service (D-DOS) attack, Service Provider reserves
the right to disconnect the Server from the network should it deem that no
other solution is possible at that stage.
6.6 Managed
Server Availability and Uptime
6.6.1 Should the Subscriber Service Contract state that CipherWave is
responsible for the management of the server operating system (OS), CipherWave
undertakes the server OS shall be made available with a minimum uptime of 99.5%
measured monthly. This undertaking covers the availability of the core OS, OS
roles installed by CipherWave that are deemed a requirement to provide
CipherWave services and OS updates performed by CipherWave.
6.6.2 This undertaking excludes OS changes and
configurations made by Customer or a third party. Any “downtime” caused by
Customer or third party configuration changes or application installations on
the server OS are not covered by this MSA and does not count towards the total
“downtime” for the measurement period. Any such “downtime” that the Customer
requires CipherWave to resolve shall be done so according to the time-frames
and costs as stipulated in Section 5.6 - 5.9 of this agreement.
6.7 Managed
Application Availability and Uptime
6.7.1 If
CipherWave is responsible for the management of certain applications (e.g.
Microsoft SQL Server, Microsoft Exchange, etc.) and server roles (e.g. Hyper-V,
Active Directory, etc.) per this Agreement and specified in Schedule A.
CipherWave undertakes that these shall be made available with a minimum uptime
of 99.5% measured monthly. If the managed application uptime does not meet
these objectives except as the result of an Excused/Scheduled Outage, Customer
will be entitled to a Service Credit off of the monthly service charge for
affected services as stipulated in the table in 6.9 Service Credits.
6.7.2 The exclusion of such application
uptime undertaking must be explicitly stated within the attached schedule. This
undertaking excludes OS and or application changes made by Customer or a third
party that affects the performance of the application. Any “downtime” caused by
Customer or third party changes is not covered by this MSA and does not count
towards the total “downtime” for the measurement period. Any such “downtime”
that the Customer requires CipherWave to resolve shall be done so according to
the time-frames and costs as stipulated in Section 5.6 – 5.9 of this agreement.
6.8 CipherCloud
Hosted Services Availability and Uptime
6.8.1 CipherWave undertakes that its CipherCloud Services viz. Hosted
Exchange, Hosted SharePoint, Hosted Dynamics CRM and Hosted Lync shall be made
available with a minimum uptime of 99.5% measured monthly.
6.8.2 Downtime for each of the services will be
defined as:
6.8.2.1 Hosted
Exchange; Any period of time when end users are unable to send or
receive email with Outlook Web Access and other mail client e.g. Microsoft
Outlook.
6.8.2.2 Hosted
SharePoint; Any period of time when users are unable to read or write
any portion of a SharePoint site collection for which they have appropriate
permissions.
6.8.2.3 Hosted
Dynamics CRM; Any period of time when end users are unable
to read or write any Service data for which they have appropriate permission
but shall not include non-availability of Service add-on features.
6.8.2.4 Hosted Lync; Any
period of time when end users are unable to see presence status, conduct
instant messaging conversations, or initiate online meetings*. (*Online meeting
functionality applicable only to Hosted Lync Enterprise service)
6.8.2.5 Virtual
Servers; Any period of time when Customer cannot access their
hosted Virtual Server via RDP (Remote Desktop Protocol), SSH (Secure Shell),
FTP (File Transfer Protocol), HTTP (Hypertext Transfer Protocol) and HTTPS
(Hypertext Transfer Protocol Secure) and the server does not respond to
PING/ICMP (Internet Control Message Protocol) from inside and outside of the
CipherWave network.
6.8.3 The Customer is obliged
to raise the service ticket and the time calculation will be determined from
the time the call was logged, until the service is restored. Credits will only
be paid subject to the correct procedure for the raising of a service ticket.
Customer will be entitled to a Service Credit off of the monthly service charge
for the affected service/s as stipulated in the table in 6.9 Service Credits.
6.9 Downtime Crediting
6.9.1 In the event that Customer suffers any “downtime” or lack of
network or infrastructure availability, the Customer shall receive a credit on
their account subject to the table below. All requests for credit must be made
within ten (10) business days from the occurrence of the downtime and must be
made in writing via a support ticket. All credit requests must be verified by
CipherWave staff and credits may take up to thirty (30) days to reflect on
Customer’s invoice. CipherWave reserves the right to revoke any credit for
downtime issued where it is later discovered to have been be caused by or
attributed to Customer activity or external forces not related to CipherWave
network or hardware.
|
99.5% SLA |
Credit |
|
|
99.5% SLA |
Credit |
|
99.5% - 99.5% |
10% |
|
98% - 99.49% |
10% |
|
|
98% - 99.49% |
25% |
|
95% - 97.99% |
25% |
|
|
95% - 97.99% |
50% |
|
90% - 94.99% |
50% |
|
|
Below 95% |
100% |
|
Below 90% |
100% |
6.9.2 If the average
uptime over three (3) consecutive calendar months falls
between 90% - 95% on 99.5% SLA level or between
85% - 90% on 99.5% SLA level, the
Customer has the right to terminate this agreement forthwith, without any
penalty, subject to 6.9.4.
6.9.3 If the average
uptime for any one (1)
calendar month is below 90% on
99.5% SLA level or below 85% on
99.5% SLA level, the Customer has the right to terminate this
agreement forthwith, without penalty, subject to 6.9.4.
6.9.4 CipherWave utilises a network monitoring
application that is able to accurately verify average uptimes. Should the
Customer wish to effect termination of this agreement in terms of clause 6.9.2
and or 6.9.3 above, then CipherWave must first verify that the requirements
therein are met through CipherWave’s own network monitoring application, which
it do in good faith.
6.9.5 The Customer must communicate the termination in writing to
CipherWave and will be liable for payments due up to that date, less any credit
allotted to them.
6.10 Spares and Hardware Replacement Undertaking
6.10.1 Where products and services as detailed in this MSA and/or the
Service Order/s are owned by CipherWave and provided to Customer as a managed
rental, spares for such products and services will be maintained by CipherWave.
In the event of the products and/or equipment being rented to the Customer
and/or Subscriber then the Customer and/or Subscriber shall be required to
enter into a separate rental agreement in respect thereof.
6.10.1.1 If
CipherWave has sold hardware to the Customer outright. Therein the Customer
owns the hardware, and the hardware was sold with a manufacturer/supplier
warranty and/or support SLA. Customer undertakes to handle the support
procedure between the Customer and the hardware manufacturer/supplier directly.
The
following clauses (6.10.2 – 6.10.4) exclude wireless and satellite network
services:
6.10.2 CipherWave warrants and
undertakes that in the event of a critical component failure, CipherWave shall
replace such component(s) at no cost to the Customer within 8 (eight) working
hours of the service ticket being raised in respect of the failure. Acknowledgement
shall be defined as the creation of a support ticket for the Customer by the
Service Provider concerning the critical failure, and the 8 (eight) hour
Hardware Replacement Undertaking shall begin at this time. Critical components
shall be defined as one or more of the following components: CPU / Processors,
Memory (RAM), Motherboards, Network Interface Cards (NIC Cards), Hard Drives,
Secondary Hard Drives and Disks.
6.10.3 This MSA does not cover any special equipment that the Customer is
using that CipherWave does not stock replacements for. This includes
specialised storage devices, load balancers and networking equipment, optical
drives, software and operating systems.
6.10.4 Failure on the part of CipherWave to replace critical components
within 8 (eight) working hours shall result in credit being issued to the
Customer’s account based on the following formula:
Credit =
((minutes to replace – 480 minutes) ÷ 44 640 minutes) x overall monthly service
fee as per contract.
All requests for credit must be made within ten (10) days
from the occurrence of the critical component failure and must be made in
writing via a support ticket. All credit requests must be verified by
CipherWave staff and credits may take up to thirty (30) days to reflect on
Customer’s bill. It is further agreed that in the event of the request for the
credit not being made within 10 (ten) days, then such credit will be forfeited
and the Subscriber and/or Customer will not be entitled to claim such credits.
6.10.4.1
It is to be recorded and specifically agreed herein that in the event of the
Subscriber and/or Customer claiming a credit of which has been approved by the
Service Provider, of which such approval is solely within the discretion of the
Service Provider, the Subscriber and/or Customer accept that they will pay the
full month's statement in which the credit request arose and which was approved
and that the credit shall apply for the month following such approval.
6.10.5 Limitations on CipherWave Hardware Replacement Undertaking
CipherWave’s Hardware Replacement Undertaking shall cover
the time spent to replace critical components after the service ticket is
raised by the Customer in respect of the critical component that is the cause
of the problem or downtime and replacement is the agreed-upon course of action.
This undertaking does not cover any time spent restoring any operating
environment or restoring the functionality of a particular server or server
environment, including, but not limited to: rebuilding data or domains,
rebuilding control panels or server consoles, digital certificates, CRON jobs,
installing operating systems or virtualization software, software components,
RAID arrays, or any part of any configuration or setup concerning equipment
provided to CipherWave by Customer.
CipherWave is not responsible for any third-party loss due or attributed
to any downtime experienced by Customer under this agreement.
Initial:
6.10.6 It
is specifically agreed that in respect to the spares and hardware replacement
undertaking that such undertaking is given at the sole discretion and it is
specifically agreed between the parties that insofar as this paragraph is
concerned, that the indemnification and limitation of liability clauses as set
out in paragraph 12 herein will apply to the spares and hardware replacement
undertaking.
6.11 Customer Obligations
6.11.1 The Customer shall be responsible for procuring and maintaining, in
its name and at its expense, all necessary permits (as required by law) and
consents (as required by law) for the provision of the Service and/or the
installation and/or use of the CPE and/or any ancillary equipment for the
duration of this Agreement.
6.11.2 The Customer shall –
6.11.2.1 ensure all equipment connected to or
used in conjunction with the Service is connected or used in accordance with
applicable South African laws, rules and/or regulations and shall obtain the
prior written approval of Service Provider before connecting or permitting any
third party to connect any equipment to any electronic communication system or
equipment operated by Service Provider or use any Equipment;
6.11.2.2 ensure that the
Service is used strictly in accordance with Service Provider’s Acceptable Use
Policy. A copy of the Acceptable Use Policy is available upon request. However,
notwithstanding the fact that it is available upon request the Subscriber
and/or Customer accepts and acknowledges that they've read the Acceptable Use
Policy and will be bound to the terms thereof.
6.11.2.3 responsible for its own local area
network and infrastructure and shall implement such
reasonable security measures in respect thereof to ensure
that the security of and last mile access links provided by Service Provider
(e.g. fibre, wireless, etc.) is not compromised;
6.11.2.4 promptly comply with
all notices, instructions or directions given by Service Provider in respect of
the installation, use or operation of the Service, Software and the CPE;
6.11.2.5 install, use and maintain all
equipment necessary for the provision of the Service in good
working order (fair wear and
tear excepted) in accordance with the specifications, guidelines and
recommendations of Service Provider and the vendor thereof;
6.11.2.6 at all times retain custody and
control of the CPE at the premises occupied by the Customer or such other
premises as Service Provider may have approved for such purpose;
6.11.2.7 use the service for
its own internal business purposes and shall not be entitled, either directly
or indirectly, to transfer, distribute, re-distribute, copy, sell, re-sell,
lease, rent, lend, license or sub-license the Service, either in whole or in
part, in any way whatsoever, to any third party without Service Provider’s
prior written consent.
6.11.3 The Customer shall not –
6.11.3.1 use or permit the use
of the Service or install, connect or link or use (or permit the installation,
connection, linking or use) of any
electronic communications equipment
in contravention of any South African laws, rules and/or regulations
carry out or permit to be carried out any additions, improvements, adjustments,
modifications, alterations or replacements to the CPE without the prior written
consent of Service Provider;
6.11.3.2 use or permit the use
of the Service or any electronic communications equipment in any manner or for
any purpose whatsoever which generates or is likely to generate electronic
communications traffic which causes or is likely to cause congestion in or
disruption of the Service offered by Service Provider;.
6.12 Completion
Certificate and Service Order
Insofar as the Service Order and Completion
Certificate is concerned it is specifically agreed that:
6.12.1 The
Customer and/or Subscriber may, from time to time require services from the
Service Provider.
6.12.2 This
request will be made by the Customer and/or Subscriber to the Service Provider
to the e-mail address [email protected].
6.12.3 Services are contracted by the
customer by signing a Cipherwave Sales Order or my issuing Cipherwave a
Purchase Order.
6.12.3 The
Service Provider will then generate a Service Order similar to that as set out
in Annexure "A" hereto of which shall be signed by the Customer
and/or Subscriber and returned to the Service Provider by either e-mail or fax
to [email protected].
6.12.4 That
Service Order shall contain various information, including the initial period,
the product and/or service to be
provided together with the monthly charge.
6.12.5 That
Service Order, which cannot unilaterally be withdrawn by the Customer and/or
Subscriber will be deemed to be accepted by the Customer and/or Subscriber upon
the Service Provider receiving the Service Order signed by the Customer and/or
Subscriber.
6.12.6 Completion
of the commissioning of services as per the Service Order would be deemed to
have been achieved upon the Service Provider delivering a Completion
Certificate to the Customer and/or Subscriber which is to be signed and
returned by the Customer and/or Subscriber within 5 (five) days of receipt of
the Completion Certificate, failing which, the Completion Certificate shall be
deemed to have been accepted by the Customer and/or Subscriber. The effective
date is as set out in paragraph 2.9. (Upon delivery of the Completion
Certificate the services are rendered or capable of being rendered so are we
not to remove the word "deemed".)
6.12.7 In
the event of the Customer and/or Subscriber objecting to the Completion
Certificate within the prescribed period, then the procedure as set out in
paragraph 2.9 shall be followed. In this regard it is specifically agreed that
in the event of the Customer and/or Subscriber raising unreasonable objections
to the Completion Certificate shall entitle the Service Provider to, without
notice, cancel the MSA and/or any Service Order/s.
Initial:
7.
RAISING A SERVICE TICKET
7.1 The Customer may raise a service ticket with the 24-hour
Service Desk by using one of the following methods:
7.1.1 Email service incident to [email protected], or by
7.1.2 Telephone call made to 0860 070 070, 010 612 0600
or 011 541
9940.
7.2 Service
tickets may only be raised by the designated persons nominated by the Customer.
The nominated persons for raising service tickets must be outlined in Schedule
A.
8. GENERAL SERVICE
EXCEPTIONS
8.1 CipherWave has no obligation to support
the following:
8.1.1 Backups of the specified equipment unless otherwise specified in
this MSA and/or any Service Order/s. Associated databases and components are
specifically excluded from this SLA and will be the responsibility of the
Customer.
8.1.2 A Software problem or any defect resulting from unauthorised
changes made by Customer to the Equipment in such a way that the Equipment
becomes inconsistent with the environment for which the Software or the
hardware containing the Software was originally purchased. These changes could
include the type of computer hardware, version of operating system, version of
compilers, application software, and so on.
8.1.3 A Software problem or any defect caused by the negligence of
Customer including, but not necessarily limited to unauthorised activities in
the managed environment (i.e. change control management not followed) and/or
the data centre according to the CipherWave Data Centre Policy or its
employees, agents or any other person (other than a person of/through
CipherWave).
8.1.4 Software problems or failures occasioned by virus infection
whether or not virus protection software has been installed. The Customer will
be solely responsible for ensuring that Product Manufacturer recommended
anti-virus software is both installed and maintained with the latest versions.
8.1.5 All incidents will be followed by an incident report within 72
hours of being resolved and will state cause (e.g. action by person, software
error, configuration error, hardware failure, etc.) and resolution of the issue
as well as recommended steps to be taken to mitigate potential reoccurrence of
the issue. The incident report will also state whether the cause of the
incident is covered under this SLA and whether or not SLA credits are due.
8.1.6 Where service response may result in risk to
the safety of the team attending to a raised service ticket.
8.1.7 Where service response may result in the team contravening any
legal and or safety guidelines or regulations. For example - climbing masts in
inclement weather.
8.1.8 In instances where uptime disruptions are as a result of power
outages at the Customer’s site, and the Customer has not implemented
preventative measures such as uninterruptible power supplies or generators.
9. GENERAL SERVICE PROVISIONS
9.1 Product Updates are only
offered where the Customer has purchased the Software Support Services.
Product Updates are available via the Internet or other media upon
request. Software maintenance release
updates via CipherWave’s Technical Services Support Centre will be
supplied upon request in terms of clause
5.6 – 5.9.
9.2 The Customer will be
responsible for the daily administration of the devices, log files and capacity
management
unless covered in terms of the
SLA and Schedule of Service.
9.3 The Customer acknowledges
that ownership of all Intellectual Property Rights relating to CipherWave’s
infrastructure and services
shall at all times remain vested in CipherWave. This excludes the Intellectual Property
hosted by CipherWave and developed by Customer.
All intellectual property proprietary to each Party shall at
all times
and beyond the scope of the
Agreement remain vested in the respective Party.
9.4 Cloud Physical
Infrastructure is licensed under the Microsoft SPLA (Service Provider License
Agreement) for Windows Server Datacenter, allowing
for unlimited Virtual OSE’s.
9.5 Customers may use their own
Microsoft licenses if they have license mobility through software assurance; additionally customers can make use of their own Microsoft
Software Subscription licenses.
9.5.1
In the event of additional Microsoft software licenses being required,
the relevant licenses will need to be quoted and the Service Order updated upon
acceptance by Customer, however, this is subject to CipherWave
Engineers being provided administrative rights to the Server for audit purposes
at any given time.
9.6 Microsoft CSP Licenses are only allowed to be
used on Dedicated Infrastructure.
10. CHARGES AND
PAYMENT TERMS
10.1 In
consideration for the provision of the Services, Terminal Equipment and/or any
other services supplied by CipherWave to Customer, the Customer shall effect
payment to CipherWave of the applicable charges, as detailed in this Agreement
and attached annexures / schedules whether or not the Services have been, or
are being utilised by the Customer.
10.2 Unless
otherwise agreed to by CipherWave in writing, the Customer shall effect payment
to CipherWave:
10.2.1 for
once-off services (e.g. installation charges) on presentation of invoice and
against commissioning of the Services.
10.2.2 for
monthly service charges made monthly in
advance within 30 days from date of any relevant invoice.
10.2.3 via
an EFT where the Customer shall have discharged its obligations only upon
payment being received by CipherWave.
10.3 In
the event that CipherWave requires payment for the services provided to the
Customer to be made by EFT, the Customer will commit a breach of the Agreement
if the Customer:
10.3.1 Fails to honour the payment without the
written consent of CipherWave.
10.3.2 Provides CipherWave with an incorrect
payment amount.
10.4 The
monthly statement shall be sent by CipherWave to the Customer to the e-mail
address supplied by the Customer in this Agreement. Onus shall be on the
Customer to check the statement in order to ensure that its contents are
correct. Unless a query is raised in respect of the contents of the statement
within 15 days from the date thereof, the contents of the statement shall be
deemed to be correct.
10.5 For
the duration of this Agreement, any migration from one service to another shall
be subject to CipherWave’s approval in its discretion and CipherWave shall be
entitled to levy fees for migrations, but which fees may not exceed the amounts
approved or fixed by the responsible regulatory authority from time to time.
10.6 In
the event of Customer cancelling this or part of this Agreement other than for
reasons stated in 6.9.2 or 11, CipherWave reserves the right to charge a
penalty equal to or less than the value that would have been paid by the
Customer for the service being cancelled over the full remaining term of the
contract. This will include, but not be limited to, services such as licensed
wireless links, fibre links and services provisioned from third parties.
Initial:
10.7 CipherWave shall ensure that any Terminal Equipment is installed
to the Customer’s satisfaction before commencement of billing and once the
Customer has signed off on said installation, CipherWave will accept that the
Customer is satisfied with the Installation.
10.8 In the event of the Subscriber failing to effect payment of any
amount owing by them to Service Provider on due date, then without derogating
from Service Provider’s rights in terms of clause 11, the Subscriber shall be
liable to pay interest to Service Provider on the amount so owing at the prime
interest rate as published from time to time by First National Bank plus 5% (five
percent), from due date to date of payment.
10.9 Unless specifically stated otherwise, all prices and charges set
out in the Agreement and/or any price list are exclusive of Value-Added Tax and
any other applicable tax or duty, the cost of which shall vest with the
Subscriber.
10.10 A certificate under the hand of any Manager of Service Provider
certifying the sum of any amount owing by the Subscriber to Service Provider
shall be prima facie proof of its contents and sufficient proof for the
purposes of enabling Service Provider to obtain any judgment or order against
the Subscriber.
10.11 Should
the Subscriber be placed under administration, sequestration or liquidation
proceedings, or suffer any other legal disability which will negatively affect
the Subscriber’s ability to make payment to the Service provider, the Subscriber is required to
notify the Service Provider in writing within 7 (seven) days of occurrence of
the afore-mentioned events.
10.12 Cipherwave will review products and services pricing
from time-to-time and may amend the product or service pricing.
10.13 Cipherwave further reserves the right to apply
annual CPI related price increase on all in and out of contract services on an
annual basis.
10.14 The customer acknowledges and agrees that
Cipherwave will be entitled to amend the product and/or services pricing upon
providing 30 Days written or electronic notice.
10.15 Cipherwave
reserves the right to change pricing rate cards without notice on new service
proposals.
10.16 The
Customer hereby consents in the event of any legal action being instituted by
the Service Provider against it, it hereby consents to the jurisdiction of the
Magistrate's Court holding jurisdiction despite the fact that the amount
claimed exceeds the jurisdiction of the Magistrate's Court. Notwithstanding the
contents of this paragraph the Service Provider can, if it deems necessary,
approach the High Court holding jurisdiction for any urgent application and
also has the discretion to institute action out any High Court holding
jurisdiction.
11. BREACH, SUSPENSION
AND TERMINATION
11.1
In the event that either Party (Primary) commits a breach of any of the terms
and conditions herein, or, to any Service Order, then, in such event and in the
event of the defaulting party remaining in breach for a period of 14 days after
receipt of written notice (“notice of breach”) from the other Party (Secondary)
calling for such breach to be remedied, Secondary Party shall be entitled,
without prejudice to any other rights or remedies it may have hereunder or in
law including the right to claim damages, to –
11.1.1 claim specific performance,
and/or
11.1.2 cancel this Agreement,
and/or
11.1.3 claim damages.
11.2 Notwithstanding
the contents of paragraph 11.1, it is specifically agreed that the Service
Provider may at any time, and by providing adequate notice to the Subscriber
and in any manner whatsoever, suspend the Subscriber’s access to the Services
in the event that:
11.2.1 Any
modification, maintenance or remedial work is required to be undertaken
pertaining in any manner whatsoever to the Services or the Network. Service
Provider will endeavour to inform the Subscriber timeously in the event of
planned maintenance.
11.2.2 The
Subscriber fails to perform any of their obligations, or breaches any terms of
the Agreement, in which event Service Provider may also suspend the
Subscriber’s use of the terminal equipment and/or services.
11.3 Service Provider reserves the right to require the Subscriber to
effect payment of any applicable reconnection charges pursuant to restoration
of Services suspended in the circumstances contemplated in clause 11.2.2. In
the event that the Subscriber’s access to the Network is suspended, the
Subscriber shall still be liable for the monthly service charges during any
such period of suspension.
11.4 Notwithstanding
the provision of Services to the Subscriber, all Terminal Equipment shall
remain the property of the Service Provider.
11.5 The Service Provider shall be entitled to use the terminal
equipment installed at any site for the provision of Services to Subscribers
other than the Subscriber party to this Agreement.
11.6 Without prejudice to the provisions of clause 11.1 above,
CipherWave may forthwith terminate this Agreement at any time by giving the
Customer written notice of such termination if:
11.6.1 a judgment against the Customer remains unsatisfied for a period of
14 (fourteen) days or more after it comes, or ought reasonably to have come, to
the attention of the Customer;
11.6.2 the Customer commits any act of insolvency as set forth in Section
8 of the Insolvency Act 24 of 1936, as amended;
11.6.3 the Customer makes any arrangement or composition with its
creditors generally or ceases or threatens to cease trading;
11.6.4 the Customer is, other than for the purposes of reconstruction or
amalgamation, placed under voluntary or compulsory liquidation or under
judicial management or under the equivalent of the aforegoing;
11.6.5 the Customer or any of its directors, shareholders or members is
convicted of a criminal offence, which in CipherWave’s opinion would impact
negatively upon CipherWave.
11.6.6 the Service Provider’s
Licence is revoked, terminated or amended for any reason whatsoever.
11.6.7 the
Customer commits a material breach of the agreement.
11.7 Indulgences: If either party at any time breaches any of that
party’s obligations under the Agreement, the other party (”aggrieved party”):
11.7.1 May at any time after that breach exercise any right that became
exercisable directly or indirectly as a result of the breach, unless the
aggrieved party has expressly elected in writing of a clear and unambiguous
conduct, amounting to more than mere delay, not to exercise the right. In
particular, acceptance of late performance shall for a reasonable period after
performance be provisional only, and the aggrieved party may still exercise
that right during that period.
11.7.2 Shall not be stopped (prevented) from exercising its rights arising
out of a breach, despite the fact that the aggrieved party may have elected or
agreed on one or more previous occasions not to exercise the rights arising out
of any same/similar breach or breaches.
11.8 The
Service Provider may, without prejudice to any other rights which it may have
under the Agreement or at law:
11.8.1 Notify credit bureaus of the Subscriber’s default; and
11.8.2 Blacklist the equipment to prevent the further use thereof. Once the terminal has been blacklisted, the
Service Provider shall be entitled to remove or recover the terminal equipment
from the site where it is stationed without notice to the Subscriber.
12.
LIMITATION OF LIABILITY
12.1 Without
detracting from any of the other provisions of this Agreement, Service Provider
shall not be liable to the Subscriber, its directors, employees and/or agents
for any loss and/or damage (whether direct, indirect or consequential) suffered
by the Subscriber, its directors, employees and/or agents for any reason
whatsoever in the event that:
12.1.1 Service Provider fails for any reason
whatsoever to supply and/or deliver and/or provide installation of any terminal
equipment either on the required date or at all; and/or
12.1.2 The
Services are interrupted, suspended or terminated for whatever reason; and/or
12.1.3 Service
Provider fails to suspend the provision of the Services to the Subscriber in
terms of an arrangement between Service Provider and the Subscriber or after
the Subscriber has specifically requested Service Provider to do so in order
to limit the charges; and/or
12.1.4 Such
loss or damage was caused by any g r o s o r o t h e r w i s e negligent act or
omission on the part of Service Provider, its employees or its agents.
Initial:
12.2 The Service Provider shall not be
responsible for any loss or damage caused by third party suppliers.
Initial:
12.3 The
Service Provider shall not be liable for matters including but not limited to,
any additional labour and equipment costs such as cabling, plug points.
Initial:
13. DISPUTES
13.1 Notwithstanding
the provisions of this Clause 13 in the event that there is a dispute arising
pursuant to this Agreement, the signatories hereto undertake to meet prior to
resorting to the provisions of this Agreement to ascertain whether it would be
possible to resolve any such dispute without recourse to the provisions
contained in this clause. In the event that the parties meet and are unable to
agree a solution to the dispute, the provisions of this Clause 13 will prevail.
13.2 In
the event of the matter not being able to be resolved in terms of paragraph
13.1, then, any dispute relating to the terms of this Agreement and/or should
any dispute (other than a dispute contemplated in a specific clause to this
Agreement which provides for a dispute resolution mechanism in terms of that
clause) arise between the parties in respect to this Agreement or in relation
to the conduct of the business of the Customer, without limiting the generality
of the aforegoing, any dispute relating to:
13.2.1 the interpretation or performance of any of
the terms;
13.2.2
any of the parties' rights and obligations; or
13.2.3
any procedure to be followed; or
13.2.4
the termination or cancellation of this
Agreement; or
13.2.5
the rectification of this Agreement; or
13.2.6
claim for damages by Service Provider.
then that dispute or difference may be submitted to the two
parties’ Chief Executives for resolution. Should the Chief Executives fail to
resolve dispute within 7 working days, the dispute may be referred to
arbitration in accordance with the following provisions:
13.2.7 the
arbitration proceedings shall be conducted in accordance with the rules of the
Arbitration Foundation of South Africa;
13.2.8 the
arbitration proceedings shall be held on an informal basis, it being the
intention that a decision should be reached as expeditiously and as
inexpensively as possible, subject only to the due observance of the principles
of justice;
13.2.9 each
party to the dispute shall be entitled to be represented at the arbitration
proceedings by legal representative or representatives or any other expert or
specialist retained by that party;
13.2.10 the arbitrator shall:
13.2.10.1 if the matter in
dispute is primarily a legal matter, be a practicing counsel of not less than
10 (ten) years' experience as such, to be agreed upon between the parties, and
failing agreement, to be nominated by the Arbitration Foundation of South
Africa (AFSA);
13.2.10.2 if the matter in dispute is primarily an
accounting matter, the arbitrator shall be a chartered accountant of not less
than 10 (ten) years' experience as such to be agreed upon between the parties,
and failing agreement, to be nominated by the chairman for the time being of
the Public Accountants and Auditors Board;
13.2.10.3 if the matter in
dispute relates to any matter not being primarily a legal and/or accounting
matter, or if the parties are unable to agree on the nature of the matter of
dispute, be such other person having an appropriate knowledge, as may be agreed
upon between the parties, and failing agreement, nominated by AFSA;
13.2.11 the decision of the
arbitrator shall be final and binding upon the parties and capable of being
made an order of a competent court on application by any party;
13.2.12 the terms of this
Agreement shall not preclude any party from applying to a competent court for a
temporary interdict or other relief of an urgent and temporary nature, pending
the award of the arbitrator;
13.2.13 the costs of and incidental to any
arbitration proceedings shall be in the discretion of the arbitrator who shall
be entitled to direct that the costs be determined as between party-and-party,
between attorney-and-client, or as between attorney-and-own-client.
13.3 The
arbitration shall be held under the provisions as set out by AFSA, and, it is
specifically agreed that the chosen arbitrator can, where need be, set out the
procedure and rules to be followed by the parties in order to expedite the
matter, provided that the arbitration shall be held:
13.3.1
in
Johannesburg ;
13.3.2 in accordance with such formalities and/or procedures as may be
settled by the arbitrator and may be held in an informal and summary manner, on
the basis that it shall not be necessary to observe or carry out the usual
formalities of procedure, pleadings and/or discovery or respect rules of
evidence.
13.4 The
arbitration shall be held as quickly as possible after it is requested, with a
view to it being completed within 30 (thirty) calendar days after it has been
so requested or such other period as agreed to between the parties in writing.
13.5 Notwithstanding
the contents of paragraph 13, it is specifically agreed that both parties after
an initial engagement through the arbitration process can decide whether it
intends to proceed with an action and/or summons and/or any other legal process
through a Court in the Republic of South Africa having competent jurisdiction
or whether it will proceed with arbitration.
14. CONFIDENTIALITY
14.1 Each
Party (the “Disclosing Party”) will provide to the other (the “Receiving
Party”), such Confidential Information as is necessary or expedient to enable
the Receiving Party to carry out its obligations in terms of this Agreement.
14.2 The
Receiving Party acknowledges that any Confidential Information is a valuable
asset of the Disclosing party and that any unauthorised disclosure or use of
the Confidential Information would result in financial or other harm which may
be irreparable.
14.3 Either
during the term of this Agreement, or thereafter, the Receiving Party
undertakes to the Disclosing Party that it will not, whether directly or
indirectly disclose or divulge, any Confidential Information to any third party
for any reason or purpose whatsoever, without the express prior written consent
of the Disclosing Party.
14.4 The
Receiving Party further undertakes to protect the Confidential Information
using the high degree of care it applies to protecting its own proprietary,
secret or confidential information.
14.5 All
Confidential Information disclosed to the Receiving Party is the property of
the Disclosing Party and such disclosure does not confer any rights in or to
the Confidential Information on the Receiving Party.
14.6 The
Receiving Party will only disclose the Confidential Information to its
employees and professional advisors on a need-to-know basis and then strictly
in relation to the efficient conduct of its obligations in terms of this
Agreement. The Receiving Party warrants that it will ensure that all such
persons to whom confidential Information has been disclosed shall abide by the
terms and conditions of this Agreement, and more specifically, clause 13.
14.7 The
Receiving Party undertakes not to use, exploit, or in any other manner apply
the Confidential Information disclosed to it for any purpose other than the
purpose for which it was disclosed.
14.8 The
Receiving Party shall, upon expiration or earlier termination of this Agreement
for any reason whatsoever:
14.8.1 forthwith return to the
disclosing Party all Confidential Information in its or its employees’
possession or under its or its employees’ control;
14.8.2 not retain or withhold any copies of such Confidential Information.
14.9 The
provision of clause 13 shall survive any termination or expiration of this
Agreement for a period of 10 (ten) years from the date of termination of the
Agreement.
15.
CONSENT/AUTHORITY
15.1 The
Subscriber hereby consents/authorises Service Provider to disclose the
Subscriber’s name, address and personal details to any party whenever it is
reasonably necessary for Service Provider to properly perform its functions or
protect its interests, or for the purpose of enabling the Network Operator or
Service Provider to provide
emergency Services to the
Subscriber, or directory
or repair services
and information to Network users generally.
15.2 The
Subscriber hereby consents/authorises Service Provider at any time, without
notice to the Subscriber to obtain information about the Subscriber’s profile
from any authorised and registered credit reference agency in the Republic of
South Africa.
15.3 The
Subscriber consents/authorises t h e Service Provider to provide regular
reports in respect of Subscriber’s payment conduct to any authorised and
registered credit reference agency in the Republic of South Africa.
15.4 The
Subscriber consents/authorises receiving marketing, promotional updates and
client satisfaction surveys from the Service Provider.
16. INTERCEPTION AND
MONITORING OF COMMUNICATIONS
16.1 Subject
to the provisions of Regulation of Interception of Communications and Provision
of Communication- related information Act (RICA), 70 of 2002 or any law, the
Subscriber acknowledges that the Service Provider is bound by RICA and accepts
that in certain instances as set out in RICA that the Service Provider will be
entitled and/or required to intercept, block, filter, read, delete, disclose
any communications of the Subscriber sent or posted via the Service Provider’s
network. RICA may be accessed at
http://www.info.gov.za/acts/2002/a70-2002.
16.2 The
Subscriber acknowledges and agrees that in the event that the Service Provider
is obliged by any applicable law determines or is required to determine that
any content hosted by Service Provider, published by Service Provider on the Subscriber’s behalf or transmitted by
the Subscriber by means of the
Service(s) (“Content”) is in violation of any law or the Acceptable Use Policy,
Service Provider shall be entitled –
16.2.1 forthwith
to request the Subscriber to remove such Content; and/or
16.2.2
forthwith to
require the Subscriber
to amend or modify such Content; and/or
16.2.3 without notice to the
Subscriber terminate access to any Product(s) and/or Service(s)
and/or suspend or terminate
any Service(s); and/or
16.2.4
without notice to
delete the offending Content.
16.3 The
Subscriber acknowledges that any exercise by Service Provider of its rights in
terms of clause 16.2 above shall not be construed as an assumption of liability
by Service Provider for the Content and/or the publication thereof whether or
not Service Provider has knowledge of such Content, having cognisance of the
fact that Service Provider has no general obligation in law to monitor Content.
The Subscriber hereby indemnifies Service Provider and holds it harmless
against any liability, claims, fines or other penalties of whatever nature
suffered or imposed by any person arising either directly or indirectly out of
the Content or the publication or hosting or transmission thereof.
17. DOMICILIUM
17.1 The
Parties choose as their domicilium citandi et executandi (“domicilium”) for
the delivery of all notices arising out of this Agreement or its termination or
cancellation, these addresses:
CipherWave: Building
7, Waterfall Corporate Campus
74 Waterfall Drive
Waterfall City
Midrand
1685
Facsimile:
011 541 9920
Attention: Shamith
Maharaj
Customer: ______________________
______________________
______________________
______________________
Facsimile: ______________________
Attention: ______________________
17.2 Both
of the Parties shall be entitled from time to time, by written notice to the
other, to vary their domicilium to any other address
within the Republic of South Africa which is not a post office box or post
restante.
17.3 Any
notice required or permitted to be given in terms of this Agreement shall be
valid and effective only if in writing and signed by or on behalf of the duly
authorised representative of the notifying party. For the purposes of this
clause, notices shall include any notice in the form of a data message as
defined in the Electronic communications and Transactions Act, 25 of 2002.
17.4 All notices made by any Party to the other
("the addressee") which:
17.4.1 is delivered by hand during the Normal Business Hours of the
addressee at the addressee's domicilium shall be deemed,
unless the contrary is proven by the addressee, to have been received by the
addressee at the time of delivery;
17.4.2 is
posted by prepaid registered post from an address within the Republic of South
Africa to the addressee at the addressee's domicilium shall be deemed,
unless the contrary is proven by the addressee, to have been received by the
addressee on the 10th day after the date of posting;
17.4.3 is sent by facsimile, shall be deemed, until the contrary is proven
by the addressee, to have been received
within one hour of transmission where it is transmitted during business hours
of the receiving instrument or at noon on the following Business day (excluding
Saturdays and Sundays) where it is transmitted outside such business hours.
17.5 Notwithstanding
anything contained to the contrary in this Agreement, any notice written or
otherwise actually received by one Party from the other Party shall be adequate
notice to such Party, unless otherwise required by any provision of this
Agreement.
18. CESSION AND
DELEGATION
The rights and obligations of the Subscriber in terms of
the Agreement may not be assigned, ceded or delegated to any third party. The
rights and obligations of Service Provider in terms of the Agreement may be
assigned, ceded and/or delegated by it to any other party on written notice to
the Subscriber.
19.
RISK AND OWNERSHIP
19.1 The
Subscriber acknowledges and agrees that all rights title and ownership in
respect to the services and to any Network Equipment shall at all times remain
vested in Service Provider.
Initial:
19.2 All rights of ownership in and to any
Equipment and/or Network Equipment –
19.2.1 supplied
by Service Provider on a loan or rental basis, shall remain vested in Service Provider;
19.2.2 purchased
by the Subscriber from Service Provider and supplied by Service Provider either
free of charge or at a subsidised price shall remain vested in Service Provider
for the duration of the initial period of the Service Schedule in terms of
which it is supplied; and
19.2.3 at
Service Provider’s listed price shall remain vested in Service Provider until
the Subscriber has made payment therefore in full to Service Provider.
Initial:
19.3 All risk in and to –
19.3.1 the
Equipment and/or Network Equipment shall
pass to the Subscriber upon delivery thereof and the Subscriber shall be liable
for any and all loss, theft or destruction of or damage thereto, howsoever
arising.
19.3.2 In
the event of damage to or the loss,
theft or destruction of the
Equipment and/or Network Equipment or any portion thereof, the
Subscriber shall be obliged to pay to Service Provider the cost of replacing
and/or making good the Equipment and/or Network
Equipment so damaged, lost,
stolen or destroyed.
Initial:
19.4 The Subscriber undertakes –
19.4.1 to
display in relation to the Equipment and/or Network Equipment no lesser degree
of care than it would, had same belonged to it, and shall take all reasonably necessary precautions to avoid loss, theft
or destruction of or damage to the Equipment and/or the Network Equipment;
19.4.2 not
to, in any manner, alienate, encumber or otherwise dispose of the Equipment
and/or the Network Equipment;
19.4.3 not to procure repair or maintenance of the Equipment and/or the
Network Equipment by any third party
without the prior
written consent of Service Provider or in any other manner tamper with
the Equipment and/or the Network Equipment.
Initial:
20. APPLICATION OF THE
CONSUMER PROTECTION ACT
20.1 A
transaction (as defined in the CPA) between the Subscriber and Service Provider
may or may not fall under the provisions of the CPA depending upon whether
certain values set out in clause 20.2 in respect of the Customer (“Threshold
Values”) are below a certain value at the time the transaction is entered into.
20.2 The
Threshold Values are the Subscriber's asset value or annual turnover, and the
value against which they are measured is as determined by the Minister of Trade
and Industry by publication in the Government Gazette from time to time.
20.3 Service
Provider’s duties towards the Subscriber may vary depending upon whether the
transaction in question is subject to the CPA, and Service Provider will act
upon the information given to it by the Subscriber in this regard.
Consequently:
20.3.1 The Subscriber warrants that any statement made to Service Provider
in respect of its Threshold Values is accurate.
20.3.2 If the Subscriber claims that all the Threshold Values are below
the relevant value, or otherwise that the CPA applies to the transaction in
question, Service Provider may at its instance require the Subscriber to
provide it with financial statements as proof thereof.
20.3.3 If
the Subscriber misstates the Threshold Values in such a way that Service
Provider considers for a period that the transaction is subject to the CPA when
it is not, all provisions of this Agreement that do not apply to transactions
subject to the CPA shall retroactively apply to the transaction in question,
and the Subscriber shall be liable for any damage sustained by Service Provide
resulting from such misstatement.
20.4 To
the extent that the provisions of the CPA are applicable to this Agreement, in
the event that the Subscriber alleges that there is a defect in the quality of
the Services, the only remedy that the Subscriber will have against Service
Provider, is to require Service Provider to remedy the defect in the quality of
the Services performed.
20.4.1 If
Service Provider has supplied Equipment to enable the Subscriber to utilise the
Services in the circumstances set out in clause 20.4, defects in the Equipment
will be dealt with as described in clause 20.5.
20.5 If
the provisions of the CPA are applicable to this Agreement, to the extent that
Equipment is supplied to a Subscriber, the Equipment is warranted in respect of
quality, suitability and durability for a period of 6 (six) months of the
Effective Date in respect of the Equipment concerned. Provided the Subscriber
is not in breach of the Agreement, Subscriber may within this period return the
Equipment to Service Provider without penalty if the Equipment fails to satisfy
the requirements and standards contemplated and Service Provider shall repair
or replace the failed, unsafe or defective Equipment.
20.6 If
Subscriber elects to enforce the provisions of clause 20.5 and, within 3
(three) months of any repair undertaken by Service Provider, the failure,
defect or unsafe feature has not been remedied, or a further failure, defect or
unsafe feature is discovered by Subscriber, Service Provider shall, in its sole
and absolute discretion:
20.6.1 replace the Equipment;
or
20.6.2 refund to Subscriber
the Once Off Cost applicable thereto.
Initial:
21. GENERAL/STANDARD
CLAUSES
21.1 Service
Provider, Service Provider’s employees and/or any of Service Provider’s
subcontractors shall, at all times,
adhere to the Subscriber’s security
management and site access policies and procedures as notified to Service
Provider in writing from time to time.
21.2 The
Subscriber acknowledges further that the Subscriber’s Local Area Network (LAN)
is the Subscriber’s responsibility; the
Subscriber is therefore liable for any cost in relation to upgrading and/or
configuration of the Subscriber’s LAN when installing the Service Provider’s
solutions.
21.3 No
waiver or indulgence which either Party may allow to the other Party shall be
valid unless made in writing and such waiver or indulgence shall be strictly
construed as applying only to the matter in respect of which it was allowed. Without
limiting the generality of the a foregoing, if the innocent Party has taken no
action as a result of any breach such inaction shall in no way prevent or stop
such Party from exercising any rights which it may have which flow from the
breach in question.
21.4 This
Agreement and annexures/schedules constitutes the whole Agreement between the
parties and no addition to, variation, modification or agreed cancellation of
this Agreement shall be of any force or effect unless recorded in a written
document and signed by or on behalf of the duly authorised representatives of
both parties. For the purposes hereof, a “written document” shall exclude any
document that is in the form, either wholly or partly, of a data message as
defined in the Electronic Communications and Transactions Act, 25 of 2002, and
“signed” shall mean a signature executed by hand with a pen and without any
electronic process or intervention.
21.5 Service
Provider may change the terms and conditions of this agreement as a result of
changes in taxes, laws, regulations, the terms and conditions of the license
issued to the license holder, the terms and conditions of any agreement between
the license holder and Service Provider or any circumstances or events similar
to the foregoing. Service Provider shall notify the Subscriber of any changes
as contemplated herein in writing.
21.6 The
Parties hereto acknowledge that no warranties or representations of whatsoever
nature were made by either Party to the other prior to entering into this
Agreement, save as may be recorded in this document.
21.7 This
Agreement supersedes and cancels any and all previous service level agreements
as per schedule A between CipherWave and the Customer relating to the subject
matter hereof.
21.8 The
Subscriber acknowledges having read and accepted the terms and conditions of
the Acceptable Use Policy on the CipherWave website as well as the terms and
conditions as set out herein.
21.9 The
Customer and/or Subscriber acknowledges that this agreement may in certain
respects limit the risk and/or liability of the Service Provider and/or may
constitute an assumption of risk or liability by the Customer and/or Subscriber
and/or impose an obligation on the Customer and/or Subscriber to indemnify the
Service Provider or any other person so mentioned in terms of the agreement. In
such an event it is specifically recorded that the Customers and/or Subscribers
attention has been drawn to these limitations and the Customer and/or
Subscriber understands and accepts such limitations. The Customer and/or
Subscriber views the limitations and assumptions as fair and reasonable. The
Customer and/or Subscriber has in no way, manner, means or form been forced
and/or induced to enter into this agreement and fully accepts the terms and
conditions thereof.
Initial:
21.10 In
the event of it being found that any paragraph herein is void and/or
unenforceable shall not result in this agreement or any other paragraph being
void and/or unenforceable. Each paragraph is severable of the other and in the
event of it being found that a paragraph is void or unenforceable then only
that paragraph shall be excluded and the remaining portion of the agreement
shall survive.
21.11 The
Customer and/or Subscriber confirms that it has knowledge of the Electronic
Communications and Transactions Act 25 or 2002, specifically, chapter 11
thereof setting out the limitation of the liability of the Service Provider.
21.12 The
Customer and/or Subscriber further undertakes that it shall fully comply with
all provisions of the Films and Publications Act, 65 of 1996, in the event of
the Act applying to it or them. The Customer and/or Subscriber is specifically
directed to Section 27A of the Films and Publications Act as aforementioned and
in the event of there being a breach of that paragraph the Service Provider
shall immediately notify the relevant authorities and comply with the
provisions thereof.
Thus done and signed at _________________________
on this the ____ day of ______________ 20 ___
For
and on behalf of ____________________________________________ who warrants
his/her authority hereto:
Signature:
Name: _________________________________
Position: _________________________________
Thus done and signed at _________________________
on this the ____ day of ______________ 20 ___
For
and on behalf of ____________________________________________ who warrants
his/her authority hereto:
Signature:
Name: _________________________________
Position: _________________________________
SCHEDULE A: SERVICE ORDER
SCHEDULE B: COMPLETION CERTIFICATE