business relationship agreement - network solutions · master services agreement entered into by...

Master Services Agreement

Agreement No

Master Services Agreement

entered into by and between

EOH Network Solutions a division of EOH Mthombo (Pty) Ltd

("EOH NS”)

Description and Registration Number a private company registered in accordance with the laws of South Africa

with registration number 1998/000103/07

Physical Address Ground Floor, Bates House, Tybalt Place, Cnr Howick & Treur Close,

Waterfall Office Park, Bekker Street, Midrand

Postal Address PO Box 6458, Halfway House, Midrand, 1685

Fax No. (011) 219-7500 email [email protected]

Signed at Midrand Date

Name Alex Dunwoodie who warrants that they are duly authorised to sign

Designation Business Optimisation

and

Proprietary (Limited)

("the Client")

Description and Registration Number a private company registered in accordance with the laws of South Africa

with registration number

Physical Address

Postal Address

Contact Person email

Signed at Date

Name who warrants that they are duly authorised to sign Designation

IN TERMS OF WHICH THE PARTIES AGREE AS FOLLOWS:

EOH Network Solutions Services Agreement

EOH NS Services Agreement

TABLE OF CONTENTS

1 DEFINITIONS.................................................................................................................................................................. 1

2 APPOINTMENT .............................................................................................................................................................. 3

3 DURATION ..................................................................................................................................................................... 3

4 PRODUCTS AND SERVICES ......................................................................................................................................... 3

5 CLIENT INPUT ................................................................................................................................................................ 3

6 CLIENT OBLIGATIONS .................................................................................................................................................. 4

7 STAFF ............................................................................................................................................................................ 4

8 DATA .............................................................................................................................................................................. 4

9 EXCUSING CAUSES ...................................................................................................................................................... 4

10 CLIENT THIRD PARTY CONTRACTORS ...................................................................................................................... 9

11 VARIATION PROCEDURES ........................................................................................................................................... 5

12 CONSIDERATION .......................................................................................................................................................... 5

13 GOVERNANCE STRUCTURES ...................................................................................................................................... 6

14 INTELLECTUAL PROPERTY ......................................................................................................................................... 6

15 EOH NS WARRANTIES.................................................................................................................................................. 6

16 CONFIDENTIAL INFORMATION .................................................................................................................................... 6

17 LIMITATION OF LIABILITY ............................................................................................................................................ 7

18 BREACH ......................................................................................................................................................................... 7

19 LOSS OF LICENCE ........................................................................................................................................................ 7

20 DISPUTE RESOLUTION................................................................................................................................................. 8

21 DOMICILIA AND NOTICES ............................................................................................................................................ 8

22 FORCE MAJEURE ......................................................................................................................................................... 8

23 NON – SOLICITATION ................................................................................................................................................... 9

24 ASSIGNMENT AND SUB-CONTRACTING .................................................................................................................... 9

25 RELATIONSHIP AND DUTY OF GOOD FAITH .............................................................................................................. 9

26 INTERPRETATION ......................................................................................................................................................... 9

27 GENERAL ..................................................................................................................................................................... 10


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1 DEFINITIONS

In this Agreement the following terms shall have the meanings set out below:

1.1 "Account Manager" means the representative of each of the Parties appointed to manage the provision of Services by EOH NS to the Client in terms of this Agreement, as appointed in terms of clause 13;

1.2 "AFSA" means the Arbitration Foundation of Southern Africa, or its successors in title provided that should AFSA or a successor not be in existence at any time, any appointment required to be made by AFSA shall be made by the Chairman of the Johannesburg Bar Council;

1.3 "Agreement" means this agreement and all schedules thereto;

1.4 "Business Day" means any day other than a Saturday, Sunday or public holiday within the meaning of the Public Holidays Act, 1994, in the Republic of South Africa;

1.5 "Business Hours" means from 08h00 to 17h00 on a Business Day;

1.6 "Client Data" means all data furnished to EOH NS by the Client, or generated in the course of the provision of the Services, but excludes any derivative data which is created by EOH NS for its own internal purposes or which is proprietary or confidential to EOH NS or its suppliers;

1.7 "Client Input" means the inputs reasonably required of the Client in order to enable EOH NS to provide the Services to the Client, as set out in clause 5 and expanded upon in the Service Definitions;

1.8 "Client Third Party Contracts" means contracts between the Client and third parties and "Client Third Party Contractor" shall refer to the third party with whom the Client has contracted in terms of any Client Third Party Contract;

1.9 "Confidential Information" means information or data, whether disclosed orally or in writing, that is identified as being confidential or proprietary at the time of disclosure or which by its nature would generally be deemed in the information technology or telecommunications industry to be of a confidential nature and includes, without limitation the terms and conditions of this Agreement and any information relating to a Party's:

1.9.1 business, business policies, business plans, pricing models, rate cards, Schedule of Services and other business and commercial information; and

1.9.2 know-how, trade secrets, specifications, drawings, sketches, models, samples, data, diagrams and flow charts, and

1.9.3 potential customers, customer lists, sales, sales figures and products; and

1.9.4 technical information, including use of technology, systems, hardware, software (and the incidence of any faults therein) and related material and documentation; and

1.9.5 past, present and future research and development;

1.10 "CPI" means the Consumer Price Index (metropolitan areas, all items) published in the Statistical News Release compiled by Statistics South Africa, or, in the absence thereof, a similar index nominated or prepared by EOH NS's auditors. The escalation factor used shall be the year on year increase in the CPI published immediately preceding the effective date of increase which escalation factor may be adjusted to take into account the average increase of salaries over such period in the Information Technology Industry as reflected in the South African remuneration survey for Information Technology and Support Services published on the RemChannel website (www.remchannel.co.za) by Channel Consulting (Pty) Ltd, or any similar survey as may be agreed to by the Parties in writing from time to time;

1.11 "Destructive Element" means any "back door", "time bomb", "time lock", "trojan horse", "worm", "drop dead device", "virus" or other computer software routine or code intended or designed to:

1.11.1 permit access to or the use of a computer system by an unauthorised person, or

1.11.2 disable, damage, erase, disrupt or impair the normal operation of a computer system;

1.11.3 damage, erase or corrupt data, storage media, programmes, equipment or communications, or otherwise interfere with operations of a computer system;

1.12 "Dispute Resolution Procedure" means the procedure set out in clause 20;

1.13 "Effective Date" means subject to the signature of this Agreement by both Parties, the earlier of:

1.13.1 the date of signature of this Agreement by the Party signing last in time;

1.13.2 the date of signature by the Client of the initial Schedule of Services;

1.13.3 the date on which Services commenced in terms of this Agreement, as evidenced by an itemised invoice issued by EOH NS that was paid by the Client;

1.14 "EOH NS Technology" means the various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques; models (including, without limitation, function, process, system and data models); templates; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems which EOH NS has created, acquired or otherwise has rights in;

1.15 "Excusing Cause" means:

1.15.1 a force majeure event as contemplated in clause 22 hereof; or

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1.15.2 a failure by the Client, or its Staff, to provide Client Input to EOH NS:

1.15.2.1 within the timeframes contemplated in this Agreement, or failing such contemplation within a reasonable period stipulated by EOH NS in any written request for such Client Input or within any period agreed by the Parties in writing; or

1.15.2.2 which is of the required accuracy, standard or quality, including, without limitation, where such Client Input is defective, corrupted (in the case of data) or inaccurate;

1.15.3 where the Client breaches any term of this Agreement; or

1.15.4 where any bona fide dispute arises between the Parties;

1.16 "Fees" means the fees and charges to be paid by the Client to EOH NS from time to time in terms of this Agreement, being Service Fees, Setup Fees and any other fees as may be chargeable under this Agreement from time to time as detailed in the applicable Schedule of Services;

1.17 "Independent Expert" means an independent expert appointed by written agreement between the Parties to resolve a dispute between them in terms of this Agreement, provided that:-

1.17.1 if the Parties are unable to agree on an Independent Expert within 5 (five) days of either Party requiring one to be appointed, either Party may thereafter require that same shall be appointed by AFSA; and

1.17.2 such expert shall be deemed to act as an expert and not as an arbitrator; and

1.17.3 the decision of such Independent Expert shall (in the absence of clerical or manifest error) be final and binding on the Parties; and

1.17.4 the Independent Expert’s fees for so acting shall be borne by the Parties in equal shares unless the Independent Expert determines that the conduct of either Party was such that it should bear a greater proportion or all of such fees; and

1.17.5 where AFSA is required in terms of this Agreement to appoint an independent third party (including an arbitrator), it is the Parties intention that such third party shall have the requisite skills, experience and expertise necessary to determine the specific issue at hand, provided further that AFSA’s appointee shall not be subject to dispute by either Party on the grounds that it has failed to act in accordance with the intention expressed in this clause;

1.18 "Intellectual Property Rights" means any and all rights in the nature of intellectual property rights anywhere in the world (whether registered or unregistered) owned, possessed or controlled by a Party, directly or indirectly, including, without limitation, patents, trademarks, service marks, design rights, copyright (including all copyright in any designs and computer software), source codes, moral rights, databases, trade or business names, whether capable of registration or not, but including any right to register same;

1.19 "Line-item Service" means each line item of the discrete Services to be provided by EOH NS pursuant to this Agreement, as set out in the relevant Schedule of Services and which together comprise the Services;

1.20 "Network" means all the equipment and/or network infrastructure used by EOH NS to provide the Services to the Client;

1.21 "Network Maintenance" means planned repairs and improvements carried out from time to time to the Network by EOH NS;

1.22 "Parties" means, collectively, EOH NS and the Client, and "Party" refers to either one of the Parties, as the context may require;

1.23 "Prime Rate" means the publicly quoted prime rate of interest (percent, per annum) from time to time charged by Nedbank Limited, as certified by any manager of such bank, whose appointment and authority it shall not be necessary to prove, calculated daily and compounded monthly in arrears;

1.24 "Products" means hardware and software, provided by EOH NS to the Client in terms of this Agreement from time to time;

1.25 "Pro rata Service Fees" means the initial Service Fee payable by the Client in respect of the first month of a Line Item Service, in respect of after the period between the Service Commencement Date and the end of the first calendar month;

1.26 "Ready for Service Certificate" means a document in substantially the form set out in Annexure 6;

1.27 "Renewal Period" means a period of 12 (twelve) months;

1.28 "Schedule of Services" means a document substantially in the form of Annexure 7 stipulating the specific Services and Products to be provided by EOH NS to the Client in terms of this Agreement, together with the applicable Fees, Initial Term and other information relevant to the Services, as such Schedule of Services may be amended or supplemented to from time to time by the Parties in terms of the Variation Procedure;

1.29 "Service Commencement Date" means the date on which specific Line-item Services will commence, being the date on which the Ready for Service Certificate in respect of a Line-item Service is signed off, or deemed to have been signed off, by the Client in terms of clause 4.2;

1.30 "Service Definitions" means the definitions of the Services to be provided by EOH NS to the Client in terms of specific Schedule of Services, as attached to Annexure 8;

1.31 "Service Fee" means the monthly fee payable by the Client in respect of the Line-Item Services provided in terms of this Agreement, as set out in the Schedule of Services;


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1.32 "Service Level Agreement" means the document set out in Annexure 3 hereto describing the service levels to be provided by EOH NS to the Client and the service level credits due in respect of performance failure if and where applicable, as same may be amended or supplemented from time to time by the parties in terms of the Variation Procedure;

1.33 "Initial Term" means the period over which particular Services will be provided, commencing on the Service Commencement Date and enduring for the period set out in the Schedule of Services;

1.34 "Services" means the Services and other services to be provided by EOH NS to the Client in terms of this Agreement, as set out in the relevant Schedule of Services and Service Definitions from time to time;

1.35 "Setup Fee" means the fees related to the initial setup of the Products and/or Services, as specified in the Schedule of Services;

1.36 "Service Levels" mean the qualitative and quantitative standards according to which the Services are to be provided, as set out in the Service Definitions and Service Level Agreement;

1.37 "Site" means the sites to or at which the Services will be provided as set out in the Schedule of Services;

1.38 "Staff" means any director, employee, agent, consultant, contractor or other representative of a Party involved in the provision or acquisition of the Services;

1.39 "Time and Material Basis" means the method of billing based on actual time spent and materials used, based on EOH NS’s standard rates from time to time; and

1.40 "Variation Procedure" means the Agreement variation procedure set out in clause 11.

2 APPOINTMENT

With effect from the Effective Date, the Client hereby appoints EOH NS as the provider to the Client of the Services and EOH NS accepts such appointment.

3 DURATION

3.1 This Agreement shall commence on the Effective Date and, subject to the rights of termination stipulated herein, continue thereafter until the termination or lapsing of all Services listed in the Schedule of Services.

3.2 Each Line-item Service contemplated in a Schedule of Service shall commence on the relevant Service Commencement Date and shall endure for the relevant Initial Term, whereafter it shall be automatically renewed for further Renewal Periods, subject to the right of either Party to terminate the specific Line-item Service at the end of its relevant Initial Term or any Renewal Period on no less than 90 (ninety) days written notice to the other Party.

4 PRODUCTS AND SERVICES

4.1 Provision of Products and Services. EOH NS shall during the term of this Agreement provide the Products and Services to the Client in accordance with the terms of this Agreement, as read with the relevant Schedule of Services.

4.2 Setup of Services. 4.2.1 EOH NS shall commence setup of the Services upon signature of the relevant Schedule of Services by the Client. 4.2.2 The set-up of the Services shall be undertaken by EOH NS in accordance with the network design submitted by

EOH NS to the Client, based on the information provided by the Client. Whilst EOH NS shall use reasonable commercial endeavours to design an appropriate solution for the Client, such design is strictly based on the information and requirements provided by the Client and accordingly EOH NS cannot be held responsible for any error resulting from incorrect, inaccurate or incomplete information provided by the Client.

4.2.3 Upon completion of the setup of each Line-item Services, EOH NS shall present the Client with a Ready for Service Certificate for signature by the Client to confirm that the relevant Line-item Services are ready for commencement.

4.2.4 Should the Client : 4.2.4.1 fail to sign off the Ready for Service Certificate in respect of any Line-item Services within 5 (five) Business

Days of the submission of the Ready for Service Certificate by EOH NS and fail to inform EOH NS of any problems with the setup or configuration of specific Line-item Services within such period; or

4.2.4.2 commence use of any Line-item Services; it shall be deemed to have signed-off on the relevant Line-item Services on the earlier of the date on which it commences use of the Services or the relevant period lapses.

5 CLIENT INPUT

In order to enable EOH NS to provide the Services in terms of this Agreement, the Client shall, to the extent required by EOH NS and at the Client’s cost:-

5.1 allow EOH NS and its Staff reasonable access to all necessary Sites which are under the control of the Client or its Staff, which access is required to enable EOH NS to fulfil its obligations in terms of this Agreement;

5.2 provide electricity services, telephone services and other connectivity (including access to networks, information, documentation and data) at each Site;

5.3 make available sufficiently competent and authorised resources, with appropriate access rights and permissions, to assist EOH NS and consider all requests by EOH NS for consent or authorisation without any delay, having regard to the nature of the request and the impact which any delay in such consent or authorisation may have on the provision of Services pursuant to this Agreement;

5.4 comply with all reasonable policies, procedures and instructions of EOH NS in respect of the provision of Services pursuant to this Agreement;


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5.5 take commercially reasonable measures to ensure that no Destructive Element is introduced into the Client’s or EOH NS’s systems by the Client’s Staff or any third party; and

5.6 provide all such other assistance and support as may be contemplated in this Agreement.

6 CLIENT OBLIGATIONS

6.1 Regulatory compliance. The Client has sole responsibility to ensure that the information it and its users transmit and receive over the Network complies with all applicable laws and regulations. The Client hereby indemnifies EOH NS and holds it harmless against any claims by third parties in respect of prohibited activities conducted by the Client or its users.

6.2 Acceptable Use. The Client hereby agrees that in using the Services it shall at all times comply, and shall procure that its Staff at all times comply, with EOH NS’s Acceptable Use Policy (AUP) from time to time as such is published on EOH NS’s website at www.eoh-ns.co.za

6.3 Security. The Client shall at all times adhere to EOH NS’s security and safety measures applicable to its premises and/or networks from time to time. In particular, the Client shall not engage in any of the following:

6.3.1 misuse, unauthorised use, abuse of or interference with any of EOH NS’s or any third party’s equipment or other property located at EOH NS’s data centres;

6.3.2 the harassment of any person including EOH NS’s personnel or authorised representatives, or personnel or representatives of any of EOH NS’s other clients;

6.3.3 any unlawful activity or assisting therein, while on EOH NS’s property. 6.4 General Client obligations. The Client shall not take any steps or fail to take any steps which directly or indirectly: 6.4.1 damages the Network or any part thereof; 6.4.2 impairs or precludes EOH NS from being able to provide Products and/or Services in a professional manner; 6.4.3 constitutes an abuse or malicious misuse of the Products and/or Services provided by EOH NS (including but not

limited to spamming etc); or 6.4.4 is calculated to have one or more of the above-mentioned effects. 6.5 Effect of non-compliance. To the extent that the Client is in breach of any provision of this clause 6, EOH NS

reserves the right to suspend all Services to the Client until such time as the Client remedies the situation and if EOH NS incurs any expense in remedying the effects of any of the acts or omissions referred to above, the Client shall reimburse EOH NS on demand in the amount necessary to cover such expense.

7 STAFF

7.1 Compliance with procedures. EOH NS shall comply, and ensure that its Staff comply with any practices and procedures including (but not limited to) any policies, security and access policies, safety, health and environmental policies which are of general application to the Client’s Staff at any Site to which or at which the Services are provided. The Client shall notify EOH NS of all such policies and procedures prior to the Effective Date, as the case may be and give EOH NS and the relevant Staff no less than 5 (five) days written notice of any change in existing policies or the implementation of new policies.

7.2 Staff shall work under EOH NS’s direction. Unless specifically agreed otherwise between the Parties, EOH NS’s Staff shall at all times be subject to and work under the direction and control of EOH NS.

7.3 Disciplinary action and incapacity counselling. EOH NS will be exclusively responsible for taking disciplinary action against its Staff in accordance with its own disciplinary code and counselling procedures.

8 DATA

8.1 Ownership. Ownership in all Client Data, whether under its control or not, shall continue to vest in the Client and EOH NS shall not obtain any proprietary rights in such data. For the avoidance of doubt, the Parties agree that the Client Data will at all times be the sole property of the Client.

8.2 Restricted use. The Client’s Data in the possession of EOH NS, or to which EOH NS may have access during the currency of this Agreement, may not be used, accessed and/or tampered with by EOH NS or its Staff for any purposes whatsoever other than as may be specifically required to enable EOH NS to comply with its obligations in terms of this Agreement.

8.3 Access to information. EOH NS shall provide the Client physical access to the Client Data within 5 (five) days of receipt of a written request therefor and shall make such data reasonably available to Client electronically in such manner as EOH NS and Client agree. There may be circumstances where EOH NS will be required by law to disclose or provide access to Client Data.

8.4 Return of Client Data. EOH NS shall, on written demand from the Client, return all of the Client Data in its possession to the Client in the format such data is in at the time of such demand.

9 EXCUSING CAUSES

In the event of an Excusing Cause arising: 9.1 EOH NS will notify the Client, in writing, of the Excusing Cause within a reasonable period of becoming aware of such

Excusing Cause; 9.2 the time for EOH NS’s performance shall be extended on a reasonable basis in proportion to the prejudice caused by

the Excusing Cause and EOH NS may charge for any additional hours required to execute the Services or remedy the Excusing Cause on a Time and Materials Basis;

9.3 any milestone affected by the Excusing Cause (hereinafter referred to as "the Affected Milestone"), as well as all other milestones on the affected critical path of the Affected Milestone, if any, shall be extended by a period equal to the period by which the Affected Milestone is de facto impacted as agreed by the Parties in writing, or, failing agreement as determined in terms of the Dispute Resolution Procedure;

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9.4 if an amount would have been payable to EOH NS by the Client had it not been due to an Excusing Cause, EOH NS shall be entitled to invoice the Client for work actually completed at a milestone date, notwithstanding the fact that a milestone has not been achieved; and

9.5 EOH NS shall not be liable for any failure to provide any Services in terms of this Agreement where such failure is a result of any Excusing Cause.

10 CLIENT THIRD PARTY CONTRACTORS

10.1 Applicable provisions. Where EOH NS is required to manage or liaise with Client Third Party Contractors, the following provisions will apply:-

10.1.1 the Client shall notify EOH NS in writing of the applicable terms and conditions of the Client Third Party Contracts insofar as they relate to or have an impact on EOH NS’s obligations in terms of this Agreement; and

10.1.2 the Client shall be responsible for obtaining and maintaining all necessary licences, consents or authorities under the Client Third Party Contracts (including, without limitation, any consents or licences required to enable EOH NS to fulfil its obligations in terms of this Agreement) and shall be liable for all fees and other charges payable to any third party pursuant to the Client Third Party Contracts.

10.2 No liability. EOH NS shall not be liable for any act or omission of a Client Third Party Contractor.

11 VARIATION PROCEDURES

11.1 No Variation. Subject to the provisions of this clause 11, no variation, addition or consensual cancellation of this Agreement or any component thereof shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives. For the purposes of clarity no amendment or variation to this Agreement may be concluded via email.

11.2 Amendments to Services. Further, during the currency of this Agreement, events may occur which require an amendment to the nature or scope of Services provided by EOH NS to the Client. Such amendments shall be implemented on the following basis:

11.2.1 Party desiring amendment. Should either Party wish to propose any amendment to the nature or scope of Services, such amendment shall be requested in the formal manner by way of a written proposal to the other Party, detailing the desired amendments.

11.2.2 Proposal. Should such proposal be made by:- 11.2.2.1 the Client, it shall specify the reasons for that amendment and describe the amendment in sufficient detail to

enable EOH NS to formulate a response. EOH NS shall investigate the likely impact of any proposed amendments upon the Services and the provision thereof and shall provide the Client with a document setting out such impact, including amended pricing and timeframes, in respect thereof (a "Variation Note"); or

11.2.2.2 EOH NS, it shall detail in a Variation Note the reasons for and impact of the amendment, the services required to implement the amendment and the effect that the amendments, if implemented, will have on the relevant Services, setting out sufficient detail to enable the Client to formulate a response.

11.2.3 Sign-off. The Parties shall discuss the proposed amendments and shall effect such amendments to EOH NS’s Variation Notes as may be agreed. The Variation Notes shall then be considered by the Client and approved or rejected in its discretion, provided that if a Variation Note:-

11.2.3.1 is accepted by the Client, it shall be signed off by duly authorised representatives of the Parties and incorporated into this Agreement; or

11.2.3.2 is rejected by the Client, the Services shall continue to be provided by EOH NS on the existing terms of this Agreement.

11.2.4 No amendment effective until sign-off. Neither EOH NS nor the Client shall be entitled to proceed or require the implementation of any amendment to the Services pursuant to this clause 11 until such amendment and all matters relating thereto have been agreed in writing between the Parties in accordance with the provisions of this clause 11. Pending sign-off as aforesaid, the Parties will continue to perform their obligations without taking account of the proposed amendments. Neither Party shall be obliged to agree to any amendment proposed by the other Party but the Parties will not unreasonably delay or withhold their agreement to a proposed amendment.

12 CONSIDERATION

12.1 Consideration. As consideration for the provision of the Products and the Services pursuant to this Agreement, the Client shall pay EOH NS the Setup Fee, any Pro rata Services Fees and Service Fees set out in the relevant Schedule of Services.

12.2 VAT. All amounts stipulated in this Agreement are, unless otherwise indicated, stipulated exclusive of Value-Added Tax, which shall be payable by the Client at the applicable rate.

12.3 Setup Fees. Setup Fees and Pro rata Service Fees are due by the Client on the relevant Service Commencement Date and are payable in arrears, within 15 (fifteen) days of EOH NS's invoice in respect thereof, or as may otherwise be provided on the applicable Schedule of Services.

12.4 Service Fees. Service Fees are due by the Client monthly in advance, payable on or before the 15th day of the month in which the relevant Services are to be provided.

12.5 Invoices. EOH NS shall provide the Client with a detailed VAT invoice in respect of all Fees payable pursuant to this Agreement. Such invoice may be in electronic or hardcopy format.

12.6 Payments. All payments by the Client must be made in South African Rand, free of set-off and bank charges, by electronic fund transfer, unless otherwise agreed in writing. Payments must be paid directly into EOH NS’s bank account, the details of which will be provided on the relevant VAT invoice and may change from time to time or such other bank account as EOH NS may notify the Client of in writing from time to time.

12.7 Overdue amounts. If the Client fails to make any payment on the due date, EOH NS may, without prejudice to any of its rights, charge the Client interest on the overdue amounts at the Prime Rate, plus any additional costs incurred by EOH NS related to collections as a result of Client’s failure to make any payment on the due date.


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12.8 Suspension of Services. In addition, EOH NS shall be entitled, without liability, to suspend the Services for any period during which any Fees (including all interest thereon) are outstanding or in arrears, provided that EOH NS shall give the Client no less than five Business Days written notice (which shall include by way of e-mail) of its intention to suspend the Services.

12.9 Escalations. 12.9.1 EOH NS’s pricing is made up of pricing related to the Core Services, and pricing related to services provided to

EOH NS by third party telecommunication providers, such as Telkom, Neotel and the cell phone providers 12.9.2 EOH NS’s pricing related to the Core Services will not change during the initial Period, unless otherwise agreed

between the Parties in writing. 12.9.3 EOH NS’s pricing related to services provided by third parties may fluctuate. Should the pricing fluctuate during the

term of the Agreement, EOH NS will provide the Client with 30 (thirty) days written notice of such fluctuation, providing a reasonable level of detail regarding the reason for the fluctuation in the pricing.

12.10 No set-off. The Client will not be entitled to withhold payment of any amount payable in terms of this Agreement to satisfy any claim against EOH NS arising from this or any other agreement with EOH NS, nor will the Client be entitled to set off any such amount payable in terms of this Agreement against any amount owing to it by EOH NS in terms of this or any other agreement.

12.11 Credit Checks. EOH NS reserves the right to conduct credit checks on the Client from time to time and the Client, by its signature to Annexure 2 (Consent to Conduct Credit Check), consents to such credit checks.

13 GOVERNANCE STRUCTURES

In order to facilitate the smooth and effective management of the relationship, the Parties shall each appoint a suitably qualified and responsible person to act as their Account Manager in respect of the relationship between the Parties and the management of the provision by EOH NS of Services in terms of this Agreement. In respect of such Account Managers:-

13.1 they will have the power and authority to make decisions with respect to actions to be taken by them in the ordinary course of day-to-day management of this Agreement, but, for the purposes of clarity it is recorded that the Account Managers shall not be entitled to vary the terms of this Agreement;

13.2 all invoices, communications, documentation and materials relating to this Agreement shall be sent by each Party to the appropriate Account Manager; and

13.3 either Party may, on 7 (seven) days written notice to the other, appoint an alternative Account Manager who is suitably qualified and responsible.

14 INTELLECTUAL PROPERTY

Each Party has created, acquired or otherwise obtained rights in various Intellectual Property Rights which it may employ, provide, modify, create, acquire or otherwise use during the currency of this Agreement. Each Party shall retain all right, title and interest in same and the other Party shall not have nor acquire any right, title or interest therein.

15 EOH NS WARRANTIES

15.1 Intellectual Property Warranties: 15.1.1 EOH NS warrants that no aspect of the provision of the Services or any EOH NS Technology will infringe any

Intellectual Property Rights of any third party, and EOH NS shall, at its cost, defend the Client against any such claim, provided that in respect of all such claims, the Client:-

15.1.1.1 gives prompt notice to EOH NS of such claim and EOH NS has the election to control the defence thereof; 15.1.1.2 takes all reasonable steps to mitigate any loss or liability in respect of the claim; and 15.1.1.3 does not compromise or settle the claim in any way without EOH NS’s prior written consent. 15.1.2 Should any third party succeed in its claim for the infringement of any Intellectual Property Rights, EOH NS shall, at

its discretion and within 30 (thirty) days of the infringing item having been found to so infringe, undertake one or more of the following actions:-

15.1.2.1 obtain for the Client the right to continue using the infringing item or the parts thereof which constitute the infringement;

15.1.2.2 replace the infringing item or the parts thereof which constitute the infringement with another product which does not infringe and which in all respects operates substantially in accordance with the specifications thereof;

15.1.2.3 alter the infringing item in such a way as to render it non-infringing while still in all respects operating substantially in accordance with the specifications thereof; or failing any of the above, and

15.1.2.4 withdraw the infringing item and refund to the Client all fees paid by it to EOH NS in respect of such item, pro-rated on a 3-year straight line depreciation;

provided that the above remedies shall be the Client’s sole remedies in respect of any breach of this warranty. 15.2 Service warranties. EOH NS warrants that in relation to each Managed Network Service provided in terms of this

Agreement it will provide same in accordance with all applicable laws and regulations. 15.3 Disclaimer of warranties. EOH NS hereby excludes and disclaims all warranties, whether express or implied,

statutory or otherwise, except those warranties expressly made in this clause 15. Without limiting the aforegoing EOH NS hereby disclaims all warranties of fitness for purpose and in respect of third party software applications utilised by or licensed to the Client by any third party or by EOH NS pursuant to this Agreement.

15.4 No representations. The Client warrants that it has not been induced to enter into this Agreement by any prior representations, warranties or guarantees, whether oral or in writing, except as expressly contained in this clause 15.

15.5 Survival. This clause 15 shall survive termination of this Agreement.

16 CONFIDENTIAL INFORMATION

16.1 Confidentiality obligation. Each Party ("the Receiving Party") must treat and hold as confidential all Confidential Information of the other Party ("the Disclosing Party") to which they have access or which otherwise becomes known to them during the currency of this Agreement.


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16.2 Exceptions. The obligations of confidentiality contained herein shall not apply to any confidential information which the Receiving Party thereof can show (and it shall be for the Receiving Party to prove this by documentary evidence) -

16.2.1 is, at the time of disclosure to the Receiving Party by the Disclosing Party, within the public domain and could be obtained by any person with no more than reasonable diligence; or

16.2.2 comes into the public domain and could be obtained after such disclosure, otherwise than by reason of a breach of any of the undertakings contained in this Agreement; or

16.2.3 is, at the time of such disclosure, already within the possession of the Receiving Party, or it has been independently developed by the Receiving Party; or

16.2.4 is subsequently provided to the Receiving Party by a person who has not obtained such information from the Disclosing Party, provided that, in any such case, such information was not obtained illegally or disclosed by any person in breach of any undertaking or duty as to confidentiality, whether express or implied; or

16.2.5 is disclosed with the written approval of the Disclosing Party; or 16.2.6 is or becomes available to a third party from the Disclosing Party on an unrestricted basis; or 16.2.7 is obliged to be reproduced under order of a court or government agency of competent jurisdiction or in satisfaction

of the requirements of any stock exchange or other regulatory authority. 16.3 Duties of Parties. The Receiving Party therefore agrees to hold such Confidential Information in the strictest

confidence, not to make use thereof other than for the performance of the obligations under this Agreement, to release it only to Staff and professional advisors requiring such information on a need-to-know basis and not to release or disclose it to any other person.

16.4 Survival. The Parties agree that the provisions of this clause will survive the termination of this Agreement. 16.5 Obligation prior to disclosure. EOH NS shall procure that any party to whom it validly discloses the confidential

information of the Client, as contemplated in this clause, 16.2 undertakes to respect the secret, confidential and proprietary nature thereof.

17 LIMITATION OF LIABILITY

17.1 Direct damages limited. Notwithstanding the form (whether in contract, delict, or otherwise) in which any legal action may be brought, EOH NS’s maximum liability for general and/or direct damages for any breach of this Agreement or any wilful or negligent misconduct or omission arising during the course and scope of fulfilling its obligations in terms of this Agreement, shall, in respect of the Services, be equal to an aggregate amount of the Service Fees paid by the Client over the previous 12 (twelve) months pursuant hereto. Such maximum amount shall be an aggregate amount for all claims arising out of this Agreement.

17.2 Consequential damages excluded. Neither Party shall be liable for any loss of profits, goodwill, business, clients, contracts, revenue, the use of money, contractual penalties imposed by third parties, anticipated savings or data; or any special, indirect or consequential loss and such liability is excluded whether it is foreseen, foreseeable, known or otherwise. For the purposes of clarity it is recorded that the provisions of this clause 17.2 apply whether such loss is direct, indirect, consequential or otherwise, but shall not apply to any claim by EOH NS in respect of any fees payable by the Client for services rendered, or in respect direct contractual damages as a result of a breach by the Client of any provision of this Agreement.

17.3 Exclusions. The limitations contemplated in this clause 17 shall not apply to any breach by a Party of the Intellectual Property Rights of the other Party or of clause 16.

18 BREACH

18.1 Breach. Should either Party ("the Defaulting Party") commit a material breach of this Agreement, and fail to remedy such breach within 14 (fourteen) days of having been called upon in writing by the other Party ("the Innocent Party") to do so then the Innocent Party may terminate this Agreement on written notice to the Defaulting Party.

18.2 Summary Termination. Without prejudice to its right to claim specific performance and/or damages, EOH NS may immediately terminate this Agreement at any time by giving to the Client notice of such termination if:

18.2.1 the Client is, other than for the purposes of reconstruction or amalgamation, placed under voluntary or compulsory liquidation (whether provisional or final) or under judicial management or under receivership or under the equivalent of any of the a foregoing;

18.2.2 the Client makes any arrangement or composition with its creditors; 18.2.3 the Client ceases or threatens to cease to carry on its normal line of business in the Republic of South Africa or

default or threatens to default in the payment of its liabilities generally, or commits any act or omission which would, in the case of an individual, be an act of insolvency in terms of the Insolvency Act, 1936 (as amended); or

18.2.4 the Client disposes of a material portion of its business, or should there be a change in control in the Client. 18.3 Termination without prejudice to claims. Any termination pursuant to the preceding provisions of this clause 18 will

be without prejudice to any claim which any Party may have in terms of this Agreement or in law. 18.4 Consequences of breach notice. If EOH NS has given the Client notice in terms of clause 18, EOH NS may, without

liability to the Client, suspend the provision of any Services to the Client for so long as the Client remains in default of any of its obligations to EOH NS under this Agreement. In such circumstances the Client shall not acquire the right to terminate this Agreement, withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against EOH NS or its Staff arising out of such suspension.

18.5 Termination without prejudice to claims. Any termination pursuant to the preceding provisions of this clause 18 will be without prejudice to any claim which any Party may have in respect of any prior breach of the terms and conditions of this Agreement by the other Party.

19 LOSS OF LICENCE

EOH NS may, on written notice to the Client (and without further liability to the Client), terminate this Agreement should any licence, permit, certificate, consent or exemption or other legal requirement of a material nature and without which EOH NS will be unable to provide the Services effectively expire or be withdrawn, terminated or refused for any reason whatsoever,


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provided that EOH NS shall notify the Client of same as soon as reasonably possible after becoming aware of any such eventuality.

20 DISPUTE RESOLUTION

20.1 Committee. Any dispute which arises between the Parties shall be referred to a joint committee ("DRC") of a Director (or equivalent officer) of each of the Parties, or alternates appointed by them, which DRC will use its best endeavours to resolve the dispute within 14 (fourteen) days of the dispute having been referred to it.

20.2 Expert Determination. If provided for in this Agreement, or if agreed by the DRC, any dispute of a specialised, technical or operational nature relating to the Services may be referred, together with reasons for referring the matter, to an Independent Expert for final settlement.

20.3 Failure to resolve. Should the DRC be unable to agree on whether a dispute is technical or not, or if it is unable to resolve a dispute in accordance with the aforegoing, such dispute will be finally resolved in accordance with the Rules of AFSA by an arbitrator or arbitrators appointed by it.

20.4 Demand for arbitration. Either Party to this Agreement may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party.

20.5 Urgent interim relief. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

20.6 Arbitration provisions. The arbitration referred to in clause 20.2 shall be held:- 20.6.1 at Johannesburg in the English language; and 20.6.2 immediately and with a view to its being completed within 21 (twenty-one) days after it is demanded; 20.7 Right of appeal. The Parties irrevocably agree that the submission of any dispute to arbitration in terms of this clause

20 is subject to the Parties' rights of appeal. Either Party may appeal the arbitration ruling by giving written notice to that effect to the other Party to the arbitration within 20 (twenty) days of the ruling being handed down. The appeal shall be dealt with in accordance with the rules of AFSA by a panel of 3 (three) arbitrators appointed by AFSA for this purpose.

20.8 Interruption of Prescription. The Parties agree that the demand by a Party to submit a dispute to arbitration in terms of this clause 20 shall be deemed to be the required legal process to interrupt prescription in terms of the Prescription Act, 1969;

20.9 Parties to be bound. The Parties irrevocably agree that upon expiry of the 20 (twenty) day period for appeal or the handing down of the ruling of the appeal panel, as the case may be, as contemplated in clause 20.7, the decision in arbitration proceedings:-

20.9.1 shall be final and binding upon the Parties; 20.9.2 shall be carried into effect; and 20.9.3 may be made an order of any court of competent jurisdiction. 20.10 Costs. The costs of the arbitration shall be borne by the Parties in equal shares, unless otherwise determined by the

arbitrator. 20.11 Severability. This clause 20 is severable from the rest of this Agreement and shall remain valid and binding on the

Parties notwithstanding any termination of this Agreement.

21 DOMICILIA AND NOTICES

21.1 Addresses. The Parties select as their respective domicilia citandi et executandi the physical addresses set out on the cover sheet. Likewise the Parties choose all the addresses set out on the cover sheet for the purposes of giving or sending any other notice provided for or required hereunder, or such other address or fax number as may be substituted by notice given as herein required.

21.2 Change of Address. Either Party may give written notice to the other, change its domicilium to any other physical address in the Republic of South Africa and its fax number to any other South African number, provided that such change shall take effect fourteen 14 (fourteen) days after delivery of such written notice.

21.3 Deemed Receipt. Any notice to be given by either Party to the other shall be deemed to have been duly received by the other Party -

21.3.1 if addressed to the addressee at its domicilium and posted by pre-paid registered post on the 10th day after the date

of posting thereof, or 21.3.2 if delivered to the addressee’s domicilium by hand to a responsible person apparently in charge of the addressee’s

premises, during Business Hours on a Business Day, on the date of delivery thereof, or 21.3.3 if sent by fax to the addressee on the first Business Day following the date of sending thereof. 21.4 Use of email. The Parties record that whilst they may correspond via email during the currency of this Agreement for

operational reasons, no formal notice required in terms of this Agreement, may be given via email.

22 FORCE MAJEURE

Performance of the obligations of either Party hereto in terms of this Agreement shall be excused for as long as and to the extent that such Party is unable to deliver performance because of any cause beyond its control and for which it is not responsible which, if qualifying as such shall include, without limitation, an act of God or State or war (whether declared or not) or sabotage, fire, flood, riot, strike, lock-out, downtime of any third party communication (including telecommunication) infrastructure, governmental restriction, affecting the performance of such obligations, provided that –

22.1 the Party claiming such inability – 22.1.1 shall, when that Party knows that it is likely to occur and when it occurs, immediately give notice to the other Party

(which shall be confirmed in writing as soon as possible thereafter as is possible) detailing the circumstances on which it relies and an estimate of the likely duration of such inability; and

22.1.2 shall, when that Party knows that such inability is likely to terminate and when it terminates, immediately give notice thereof to the other Party, which shall be confirmed in writing as soon thereafter as is possible;

22.2 the Parties shall co-operate together and use all reasonable efforts to overcome, or failing which, to minimise the effect of such inability;


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22.3 if EOH NS is claiming such inability and the effect thereof has not been so overcome or minimised to the satisfaction of the Client –

22.3.1 within a period of 7 (seven) days, then the Client may, but not be obliged, to engage one or more third parties to perform the obligations of EOH NS hereunder affected by such inability which would otherwise have been performed in terms of this Agreement by EOH NS, for only as long as and to the extent that EOH NS is unable to perform the same;

22.3.2 within a period of 60 (sixty) days, then either Party may (as its sole remedy therefor) terminate this Agreement at the end of 7 (seven) days written notice to this effect given to the other Party; and

22.4 neither Party shall be obliged to subsequently perform any obligation hereunder not performed as a consequence of and during any such inability, and the duration of this Agreement shall not be extended as a consequence of any such inability.

23 NON – SOLICITATION

The Parties agree that neither Party shall, without the prior written consent of the other, either during, or within 12 (twelve) months of the termination of this Agreement, engage, employ or otherwise solicit for employment whether directly or indirectly, any person who during the currency of this Agreement was a member of the Staff of the other Party involved in the acquisition or provision of Services in terms hereof. To the extent that the Party whose Staff is recruited ("the Affected Party"):

23.1 consents to any such employment, the recruiting Party ("the Recruiting Party") shall pay the Affected Party a recruitment fee equal to 25% (twenty five percent) of the gross annual package (including any quantifiable bonuses or incentives and annualised if necessary) paid by the Affected Party to the member of Staff concerned ("Gross Package");

23.2 does not consent to any such employment, the Recruiting Party shall, on written demand from the Affected Party, pay the Affected Party a recruitment fee equal to 100% (one hundred percent) of the Gross Package of the Staff concerned;

and such amount shall be payable within 30 (thirty) days of commencement of such member of Staff’s appointment by the Recruiting Party.

24 ASSIGNMENT AND SUB-CONTRACTING

24.1 No Assignment. Neither Party shall be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, provided that EOH NS may do so:

24.1.1 where same is done pursuant to a bona fide restructuring of EOH NS or is made pursuant to the sale of EOH NS’s business as a going concern; or

24.1.2 to the extent that it may cede its right to receive payment under this Agreement to a third party financier, without delegating its obligations under this Agreement.

24.2 Sub-contractors. EOH NS may sub-contract its obligations under this Agreement to third parties, provided that in such event EOH NS shall remain liable for the performance by such subcontractor of EOH NS’s obligations in terms of this Agreement.

25 RELATIONSHIP AND DUTY OF GOOD FAITH

25.1 No temporary employment service. Nothing in this Agreement shall be construed as constituting a temporary employment service as contemplated in section 198 of the Labour Relations Act, 1995.

25.2 Good Faith. The Parties shall at all times owe each other a duty of good faith and shall, in all dealings with each other and in respect of the Services act according to such standard.

25.3 No authority. Nothing in this Agreement shall be construed as creating a legal partnership between the Parties and neither Party shall have any authority to incur any liability or obligation on behalf of the other or to pledge or bind the credit of the other Party.

26 INTERPRETATION

This Agreement shall be subject to the following rules of interpretation. 26.1 Headings. Headings and sub-headings are inserted for information purposes only and shall not be used in the

interpretation of this Agreement. 26.2 Parts of the Agreement. Unless otherwise stated: 26.2.1 references to clauses, sub-clauses, schedules or paragraphs are to be construed as references to clauses, sub-

clauses, schedules or paragraphs of this Agreement; 26.2.2 references in Schedules to clauses shall, unless expressly provided otherwise, be deemed to be a reference to

clauses in such Schedule. 26.3 Enactments. References to any enactment shall be deemed to include references to such enactment as re-enacted,

amended or extended from time to time. 26.4 References to persons. References to:- 26.4.1 persons shall include companies, corporations and partnerships; 26.4.2 any Party shall, where relevant, be deemed to be references to, or to include, as appropriate, their respective

successors or permitted assigns; 26.4.3 the singular shall include the plural and vice versa; 26.4.4 any one gender shall include a reference to all other genders. 26.4.5 days shall be deemed to be to calendar days, unless specifically stipulated as being business days. 26.5 Survival of terms. The expiration or termination of this Agreement shall not affect such of the provisions of this

Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.


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26.6 Substantive provisions. If any provision in a definition is a substantive provision conferring rights or imposing duties on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in this Agreement.

26.7 Calculation of days. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a business day, in which case the last day shall be the next business day.

26.8 Approvals and consents. Where the approval or consent of any Party is required in terms of this Agreement, the Parties hereby agree that such approval or consent shall not, unless expressly provided to the contrary, be unreasonably withheld or delayed by the Party who is required to give same

26.9 Neutral construction. The rule of construction that the Agreement shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply.

26.10 The term "including". The words "include", "includes", and "including" means "include without limitation", "includes without limitation", and "including without limitation". The use of the word "including" followed by a specific examples shall not be construed as limiting the meaning of the general wording preceding it.

26.11 Common meaning. Terms other than those defined within the Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in general commercial or industry-specific practice, will be interpreted in accordance with their generally accepted meanings.

27 GENERAL

27.1 Non-exclusivity. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of EOH NS from supplying services of whatsoever nature to other clients.

27.2 Entire Agreement. This Agreement and the documents, records or attachments referred to herein or therein, constitute the entire agreement between the Client and EOH NS in respect of the subject matter hereof, and supersedes all previous Agreements in respect thereof.

27.3 Waiver. No granting of time or forbearance shall be or be deemed to be a waiver of any term or condition of this Agreement and no waiver of any breach shall operate a waiver of any continuing or subsequent breach.

27.4 Applicable Law. This Agreement shall be governed and construed according to the laws of the Republic of South Africa.

27.5 Jurisdiction. Subject to clause 20, the Parties hereto hereby consent and submit to the jurisdiction of South Gauteng High Court of South Africa.

27.6 Certificate of indebtedness. A certificate of indebtedness signed by any director or manager of EOH NS, whose authority or appointment it shall not be necessary to prove, in respect of any indebtedness of the Client in terms of this Agreement, shall be prima facie evidence of the Client's indebtedness to EOH NS.

27.7 Publicity. Neither Party shall make or issue any formal or informal announcement, advertisement or statement to the press in connection with this Agreement or otherwise disclose the existence of this Agreement or the subject matter thereof to any other person, other than a professional advisor or its Staff involved in the provision of the Services, without the prior written consent of the other Party, provided that:-

27.7.1 EOH NS may cite the Client as one of its clients in its accounting, marketing and associated material, and 27.7.2 the Client may cite EOH NS as one of its service providers in its accounting, marketing and associated material. 27.8 Costs. Each Party shall bear and pay its own fees and costs of and incidental to the negotiation, drafting, preparation

and execution of this Agreement.


Annexure 1

Index of Annexures and Service Definitions

This Agreement contains the following additional Annexures, Service Definitions and related documents.

Please mark applicable Annexures and Service Definitions with an "X"

INDEX

Please tick

if applicable

Annexure No Description

X Annexure 1 This Index of Schedules and Service Definitions

X Annexure 2 Consent to Conduct Credit Check

X Annexure 3 Service Level Agreement

X Annexure 4 Support Procedure

X Annexure 5 Installations Procedure

X Annexure 6 Ready for Service Certificate

X Annexure 7 Schedule of Services & Network Diagram(s)

X Annexure 8 Service Definitions (as listed below)

X Equipment Rental and Purchase

X Managed Network Services

X Co-Location / Hosting

X Managed access circuits

X Internet Access

X Cloud Services

X Voice


Annexure 2

Consent to Conduct Credit Check

The Client hereby consents and agrees that EOH NS may:

perform a credit search on the Client's record with a registered credit bureau;

monitor the Client’s payment behaviour by researching its record at registered credit bureaux

Registered Company name

Trading Name

Registration No

Date of Registration

VAT Number

Registered company address

Bankers:

Branch

Branch Code

Acc Number

Sign

(Authorised Signatory)

Name

Designation

ID Number


Annexure 3

Service Level Agreement

1 PREAMBLE

1.1 This Service Level Definition stipulates the actions which should be undertaken when the services contemplated in this MSA and defined in the Service Definitions have not been provided by EOH NS to the Client within the defined Service Level Agreements ("SLA").

1.2 Any term defined in the MSA shall have a similar meaning in this Annexure. 1.3 EOH NS will provide the services as set out in the Schedule of Services.

2 DEFINITIONS

2.1 "Uptime" means all times when the Service is available for access and use by the Client, subject to the terms and conditions of the Service Level Agreement of each Service.

2.2 "Downtime" means all times when the Service is unavailable. 2.3 "Allowed Monthly Downtime" means the amount of time in any month that a service is allowed to be unavailable in

accordance with the specified SLA for that service. This is calculated as the Service hours times the number of days in the year (365 days) divided by 12, times 1 minus the SLA percentage. i.e. a SLA of 99.9% availability is an equivalent Allowable Monthly Downtime of: (1-99.9%) * 24*365/12 * 60 = 44 minutes

2.4 "Measurement Tool" means EOH NS’s software and other tools and processes used for the measurement of the network availability services

2.5 "Latency" means the round-trip time measured for a 100 byte data packet across the core network from Provider Edge to Provider Edge (excluding Client’s access circuit).

2.6 "Packet loss" means the percentage of IP packets that are not received between any two Provider Edge routers. 2.7 "Service hours" means hours per day during which the service is provided, usually 24 hours every day of the year 2.8 "Effected Service" means the service which has failed and is unavailable, and excludes the consequential impact on

other services provided to the Client by EOH NS.

3 SERVICE LEVEL FAILURE

3.1 Notice of Non Performance 3.1.1 If it is agreed (or determined pursuant to the Dispute Resolution Procedure) that EOH NS has failed in any

measurement period to comply with any Service Levels, the Client may require EOH NS to remedy any such non-compliance within 30 (thirty) days (or such longer period as may be reasonable in the circumstances) of receipt of a notice of non-performance issued by the Client ("Warning Notice").

3.1.2 EOH NS shall, pursuant to receipt of a Warning Notice take such steps as may be reasonably required to remedy the non-performance within the remedy period stipulated in such notice.

3.1.3 For avoidance of doubt, the Client shall not be entitled to issue a second Warning Notice in respect of the same Service Level default during the remedy period stipulated in the applicable Warning Notice.

3.2 Rectification Plan. 3.2.1 If EOH NS fails to rectify any failure to comply with any Service Level detailed in any Warning Notice within the remedy

period stipulated, the Client may, by written notice to EOH NS, require EOH NS to submit a rectification plan ("the Draft Rectification Plan") to the Client within 5 (five) Business Days of such request, detailing the perceived cause of the failure to comply with the Service Level, together with the steps, resources and time required to rectify such failure.

3.2.2 The Client may comment on such Draft Rectification Plan, and the parties shall meet within 2 (two) Business Days of either party requesting a meeting to discuss and agree the Draft Rectification Plan. The following provisions shall apply in respect of such plan :

3.2.2.1 if the parties agree on the terms of the Draft Rectification Plan (including any amendments thereto agreed by the parties) each party shall sign such Draft Rectification Plan (as amended). Such signed rectification plan shall constitute an "Agreed Rectification Plan" for purposes of this Agreement.

3.2.2.2 If the parties are unable to agree the Draft Rectification Plan within a period of 7 (seven) days following either party requesting a meeting as contemplated above, either party may refer the Draft Rectification Plan to an Independent Expert, who shall be an independent technical auditing firm with expert skills. Such Independent Expert shall be required to determine the reasonable steps, resources and time required to enable EOH NS to comply with the applicable Service Level. Any rectification plan determined by the expert shall constitute an Agreed Rectification Plan for purposes of this Agreement.

3.2.2.3 EOH NS shall implement the Agreed Rectification Plan in accordance with the time periods stipulated therein in order to rectify the failure to comply with the applicable Service Level.

3.3 Breach. If EOH NS at any time fails to implement any Agreed Rectification Plan in accordance with the time periods stipulated therein and this results in EOH NS failing to comply with the applicable Service Level contemplated therein, such failure shall constitute a breach by EOH NS of this Agreement, which will entitle the Client to terminate this Agreement, by giving EOH NS not less than 60 (sixty) days prior written notice of termination.

4 SLA PENALTIES

4.1 Uptime for the Managed Network Services and Internet Access services is defined as the period of time when the service is useable and fully functional within the latency and the packet loss SLAs as defined. Should the latency at any time exceed the SLA or should the packet loss at any time exceed the SLA, the service will be considered as unavailable. Should the service be down, it will obviously also be considered as un-available.


4.2 Uptime for co-location services is defined as the period of time when the power is being supplied to each rack (on either an A or B feed or both), and the temperature and humidity is within the SLA as defined. Should the Client’s equipment have to be powered down for any reason (including scheduled shutdowns and emergency maintenance) caused by EOH NS then this will by be considered as Downtime.

4.3 If the Downtime of the service is greater than the Allowed Monthly Downtime within the agreed SLA, then EOH NS will pass service credits to the Client as follows:

4.3.1 EOH NS will keep a record of the cumulative Downtime for each properly reported service un-availability incident by service, in units of full minutes for each month and the SLA year.

4.3.2 If the Downtime in a month exceeds the allowable SLA downtime, the suppliers will credit the monthly service fee, or in the case of variable billed services, the previous month’s actual billed fee, to the value of 4% of the monthly fee for each full hour, or part thereof that it exceeds the allowable SLA downtime. For clarity – if the allowable Downtime is 53 mins in a month, and the actual measured cumulative downtime is 4 hr and 30 mins, the credit will be:

credit = roundup(((4x60+30)-53)/60) *4% = 16%. 4.3.3 The maximum penalty in any one month is limited to 30% of the monthly recurring fee for any service.

5 CLIENT RESPONSIBILITIES

In order for the Client to lodge a SLA claim, the client must comply with the following obligations: 5.1 to follow all reasonable advice given in relation to preventative maintenance; 5.2 to log service failures or service disruptions in accordance with the Support Definition; 5.3 to notify EOH NS of problems encountered in the performance of the services; and 5.4 to ensure availability of appropriately skilled personnel to assist with the provision of the services and log faults with EOH

NS

6 EOH NS OBLIGATIONS

Likewise EOH NS must comply with the following obligations: 6.1 to notify the Client of any problems encountered in the performance of the services; 6.2 to respond and resolve logged service problems in accordance with the Support Definition; 6.3 to receives Client calls and provides first level support; 6.4 to escalate calls to the appropriate division in accordance with the Support definition; 6.5 to escalate and manage problems with Telecommunication Suppliers through to resolution; 6.6 to logs and manage changes required by Client; and 6.7 to respond and resolve problem reports in accordance with the Support definition.

7 EXCLUSIONS

The following exclusion will apply to SLA claims: 7.1 as per the provisions of the Service Level Agreement; 7.2 any problems occasioned by use of the service in conjunction with technology or services not approved by EOH NS; 7.3 the availability of non-SLA last mile Access Circuits between the Client premises and the access node; 7.4 any failure by the Client to implement reasonable routine maintenance, other technical advice or recommendations of EOH

NS; 7.5 any non-compliance with the Client Responsibilities.


Annexure 4

Support Procedure

1. The (NOC) Network Operation Centre is EOH NS’s operations command centre for the provision of the services and management of the client network

2. Hours of operation. The EOH NS Network Operation Centre (NOC) is available on a 24 x 7 x 365 basis.

3. Call logging methods. Customers can log a call via telephone or e-mail on details below: Electronic mail: [email protected]. Every mail sent will automatically generate a confirmation ticket with a reference number.

NOC support telephone no: 0860 EOH NS (0860 364 67) - A reference number will be supplied telephonically and again via e-mail once logged in the system.

4. Structure and Functions

4.1 Proactive Network Monitoring Team. The pro-active network monitoring team is the team responsible for the pro-active monitoring and management of the network infrastructure for the detection of device down status. The team is also responsible for all Telco related service requests problems or other issues, and the tickets relating thereto.

4.2 Technical Service Desk (“TSD”). The TSD is responsible for the registration of all telephonic and e-mail support requests and are seen as 1

st level support with the aim to remedy customer support requests as quickly as possible within

the service level timelines. To ensure effective change control security, TSD engineers have no access to change any configuration on all network devices, but via read access are able to effectively troubleshoot incidents and problems with the aim of restoring service in the shortest timeframe possible.

4.3 2ND

Level Support. The 2nd Level support function associated with the TSD consists of specialised engineers responsible for higher level incidents. In general, when the TSD are unable to resolve an incident within 15 minutes the call/ticket is escalated to 2nd level support. 2nd level support engineers has full access to all networking elements, devices and configurations and are able to resolve almost any hardware and/or software related issues.

4.4 3RD

Level Support. Focuses on advanced support, core network management, core failures and are responsible for receiving, restoring and resolving more complex service requests, incidents, problems, other issues, and the tickets relating thereto, sent escalated from 2nd Level Support.

5. One Stop Service Management

The objective of the EOH NS service delivery methodology is to provide customers with Information Technology services that support all customer’s business processes as well as respond to evolving business requirements, growth in business and changes in technology with relative ease. Services are tailored to align with the unique business requirements of each client.

Figure 1:

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KnowledgeBase

Analysis


6. The NOC/Service Management Centre The NOC is the heart of the EOH-NS service operation providing a range of flexible and customisable infrastructure management solutions using tools, best practice processes and methodologies. These include:

A single point of contact for call desk and helpdesk management

Wide Area Network monitoring, administration and management

Local Area Network monitoring and management

Vendor management

Figure 2:

NOC

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AN

AG

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EN

T P

RO

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CH

AN

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AFTER HOUR SUPPORT

SERVICE DESK / 1st

LEVEL SUPPORT

TECHNICAL SUPPORT DESK

ENTERPRISE MANAGEMENT

Network and Systems

Management and Monitoring

2ND

Level Support3

rd Level/Specialist

Support

7. NOC COE Processes

7.1 Figure 3 below shows the high level process model of the NOC Centre of Excellence (“COE”). 7.2 It is s specifically recorded that the unification of all technology silos is under a single monitoring system. All functions

beyond the monitoring process are also common across all silos. This consolidation of Event Management enables a more straightforward task.

7.3 Once the root cause is remedied, EOH NS’s final task is to route the remedy through the standard Change and Configuration Management Processes, regardless of the urgency of the response. Failure to enforce the Change Management and Configuration Management processes will result in inaccurate configuration information and overall process disruptions which EOH NS aims to avoid at all times as such disruptions are contrary to the basic goals of the NOC COE.

7.4 EOH-NS aims to continuously review its infrastructure management capabilities to remain abreast with new and evolving Tools and IT business solutions. Figure 3


8. The NOC Incident Management Process

8.1 The objective of the Incident Management Procedure is to restore normal operations as quickly as possible with the least possible impact on the client and the clients business. Table 1 below indicates the service desk tiers that carry out the various activities.

8.2 The procedure is illustrated in Figure 4 below

Table 1

Activity Tier 1

Support

(TSD)

2nd

Level

Support

3rd

Level

Support

Pro-active Network Monitoring

Team

Incident detection and recording

Classification, prioritization

and initial Support

Investigation and diagnosis

Escalation

Restoring and Resolving

Incident closure

Ownership / communication

9. Call severity

9.1 All logged calls are categorised as either an Incident or a Service Request and are assigned a severity level rating based on the impact of that problem. Table 2 below defines the severity levels and is used by NOC support when categorising a call.

9.2 Time measurement start. In the case of a link failure, this starts at the time when the monitoring system reports it to be unavailable. In the case a client reported call, the time when the Service Desk receives the call from the client.

9.3 Time measurement end. In the case of a link failure the time when the monitoring system reports it to be available again after a failure. In the case of a client reported call, the time when the EOH NS Service Desk resolves the call.

EOH-NS: NOC Support Process

Ne

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Re

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ts

3rd

Pa

rty

&

Fie

ld T

ea

ms

TS

DN

OC NSR or

Problem?

2nd

& 3rd

line

supportFixed? Close CallYes

3rd

Party and/or

Onsite SupportFixed?

Yes

Event &

Availability

Monitoring

Problem

detected?

Yes

Yes

No

No

Change

Coordinator

New Service

Request Process

New Service Request

1st Line Support

Problem

Fixed?

No

Call recording on

Incident Management

System

Close CallCustomer Care

Process

Customer

satisfied?

Yes

No

Yes

New Service

Request

Products or

Services?Procurement

ProcessProducts

Project

Process

Equipment

Delivered?

No

Yes Installed? Close CallYes

No

Yes


Table 2

10. Support call escalation

10.1 Subject to the severity of the call logged, calls are automatically escalated within the service desk management system, and will follow 2 escalation paths namely functional and hierarchal as per figure 4

Figure 4

10.2 Functional

As per the times show in table 2, the Director of Operations (and in case of severity 1 and 2 calls the MD), will be notified when calls have not been closed (resolved) with the specified time frames.

Escalation Methods

Functional Escalation Technical Escalation

NOC Manager

Head of Operations

MD

Technical service Desk - 1st line

support

2nd line support

3rd Level Core support

Call Type Severity NameSeverity

LevelSeverity Description

Time to

Resolve

Core Netw ork failure or Provider Edge failure

Core IP Connect Netw ork Equipment failure

Local or International Internet connectivity failure

Pow er Outage or Sw itch fabric failure at a data centre

Total failure of any value added service/product

Failure of THE CLIENT specif ic main/hosted VPN

firew all

Slow connectivity to the Internet, data centre or

across the VPN (MPLS and IP Connect)

Failure of customer edge firew all or rented CPE from

EOHNS *excludes courier delivery time

APN failure

Degradation of value added or 3rd party products or

services

Loss of connectivity to a node due to access circuit

failures * excludes Telco time to resolve

Single user cannot connect to APN

Isolated SIM, 3G card problems

User problems relating to value added services such

as mail, mail f iltering

Client initiated Changes

Domain management Changes

Usage reports

Incident 3 8 hours

No impact SR 24 hours

Limited Impact

Service

Request

Incident 1 2 hours

Incident 2 4 hours

Business

Critical

High Impact


10. 3 Technical

As per the times show in table 3, the high severity calls which are not being resolved will be escalated to more senior engineers.

Table 3:

11. NETWORK CHANGES

11.1 In order to ensure a high level of quality of service and to avoid installations done without proper planning, no adhoc network changes or configurations will be dealt with during business hours, on weekends or public holidays. All network changes must be approved via e-mail notifications and not just telephonically. The client is responsible for their own internal change control and communication of the impact of such changes within their own company.

11.2 EOH NS will endeavour to provide a 48 hour notice period on all standard network maintenance changes required. Any emergency maintenance will not form part of this notice time frame.

11.3 Where the client will be impacted by a change, the client’s change procedures will be adhered to. The parties will work together and coordinate the change to fit in with THE CLIENT’s change control procedures.

12. NOTIFICATIONS AND REPORTING

12.1 EOH NS monitors all circuits and devices for which it is responsible. Due to the fact that lines "flap", the monitoring software will only trigger an alert for "confirmed down status" after 5 minutes. The engineer will first conduct internal trouble shooting to confirm the source of the fault -power, telco or equipment related. The call is only logged with Telkom once confirmed and is then logged into the service management system. Thereafter THE CLIENT will be contacted to confirm the status of the link and a reference number is provided.

Escalation Level

Contact Person

Position Contact Details Responsibility L

ev

el

1

Liza Boshoff

NOC Manager

NOC - 0860880860 Cell - 082 446 4494 Email: [email protected]

-Call Management -MTTR -Resources Allocation -Call Escalation

Lev

el

2

Kirk Riley

Service Manager

NOC - 0860880860 Cell - 082 601 0291 Email:[email protected]

-Escalations from Level 1

Lev

el

3

Francois Conradie

Operations Director

NOC - 0860880860 Cell - 083 625 6370 Email:[email protected]

-Escalations from Level 2 -Core network failures

mailto:[email protected]

mailto:[email protected]

mailto:francois.conradie


Annexure 5

Installations procedure

EOH NS follows a structured project management approach to the implementation of new orders and for complex design changes for existing customers. Smaller non-complex upgrades and downgrades for existing customers do not follow this process and any technical info required would be dealt with via e-mail/telephone. New projects are handled by the project manage whilst moves, changes and additions by the project coordinator. Upon internal handover from sales to the project office, the project office initiates a new project which will follow the procedure as outlined below. It is important to note that the commencement of project planning is conditional upon:

A successful credit check

A completed pre-installs document with submitted RICA

A signed contract

1. PROJECT PLANNING

1.1. Project Plan and project scoping document drafted - On receipt of the order and other client information, the Project team creates an initial draft project plan and project scoping document.

1.2. Customer Project initiation Meeting setup - Upon completion of the above, and depending on the project complexity a

customer project initiation meeting is scheduled or handled via tele-conference to achieve the following:

Introduction to project manager and project engineer

A review of the client information and requirements

Technical information confirmation and discussion

Discuss and complete Project scoping document: o Project Milestones o Project Plan o Project Communication o Meeting frequency o Change control

Minutes of the meeting are issued, and a revised project plan is submitted if required.

2. PROJECT EXECUTION

2.1. Technically scope project and allocate resources - EOH NS technical resources are allocated to the project

2.2. Submit Telco applications

2.2.1. Upon receipt of the signed Schedule of Services, Telco line applications are submitted to the various transmission suppliers (e.g. Telkom, Neotel, Broadlink)

2.2.2. The on-site installation is co-ordinated and updates provided on the status and progress of telco circuit deliveries.

2.3. Hardware procurement and configuration

2.3.1. Where stock is immediately available, the CPE will be allocated. 2.3.2. If the hardware is not available, orders will be placed on our suppliers. 2.3.3. Once the hardware is received, this is pre-configured in our LAB before being delivered to site.

2.4. Network/Sites cutover

2.4.1. When the access circuits are completed, and upon confirmation of a signed contract the installation team will

schedule the cut-over with the customer. 2.4.2. Cut-overs will either be co-ordinated with the customers technical staff on site, or when necessary, a EOH NS

engineer will dispatched to site to complete the cut-over. 2.4.3. Once the circuit is connected to the (CPE) router and the customer’s LAN connect, EOH NS installations team will

complete the configuration and carry out testing of the network. 3. PROJECT CLOSE OFF

3.1. As each service is completed, a Ready of Service Certificate ("RSC") will be completed and sent to the customer for acceptance and signature.

3.2. Once the entire project is completed, a Technical pack containing the final IP addressing and network diagrams is compiled and delivered to customer.

3.3. There is a formal hand-over of the completed network from the installations team to the Network Operations Centre ("NOC") who will become responsible for all future ongoing support.

3.4. The signed RICA and other contract documents are handed-over to our Finance department for filing and; 3.5. The completed internal project sign off documentation is submitted to Billing and the initial set-up fees and pro-rata billing

for the remainder of the first month is raised.


Annexure 6

Ready for Service Certificate

.


Annexure 7

Schedule of Services & Network Diagram

EOH NS Network Solutions (Pty) Ltd

Signed For EOH NS (duly authorised) Client (duly authorised)

Schedule of Services Date Signed

Client Name (please print)

Signature

Services Agreement No:

VAT No: Witness Signature

Date Reference Standing Order Client PO No Initial Term Client No Doc Number

Item No Description Node Branch Qty Unit Price Total

Remarks:

1. Signature of this Schedule of Services shall constitute a binding order for the Services set out herein.

Subtotal

VAT

Total

Reg No:

Vat No:

Bates House, Tybalt Place PO Box 6458

Cnr Howick and Treur Close Halfway House

Waterfall Park Midrand, 1685

Bekker Road Phone: 0860 66 0860

Midrand Fax: 011 219 7500


The following Schedules of Services are subject to this Agreement

INDEX

Please tick

if applicable

Schedule No Description

SOS # Schedule of monthly recurring fees related to Services

SOS # Setup costs


Annexure 8

Service Definitions

business relationship agreement - network solutions · master services agreement entered into by...

Documents