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DRAFT ATTACHMATE SOFTWARE MAINTENANCE AND SUPPORT SERVICES AGREEMENT
between
SOUTH AFRICAN REVENUE SERVICE
[Customer]
and
[XXX][Service Provider Name]
Confidential
TABLE OF CONTENTS
1 INTERPRETATION.......................................................................................................52 INTRODUCTION.........................................................................................................163 COMMENCEMENT AND DURATION........................................................................164 AGREEMENT STRUCTURE......................................................................................175 SOFTWARE PROCUREMENT SERVICES...............................................................186 MAINTENANCE AND SUPPORT SERVICES............................................................187 OTHER SERVICES.....................................................................................................218 DELIVERY.................................................................................................................. 229 ESCALATION PROCEDURES...................................................................................2310 SERVICE COMPATIBILITY........................................................................................2311 TESTING..................................................................................................................... 2412 SUBCONTRACTORS.................................................................................................2513 HEALTH, SAFETY AND SECURITY PROCEDURES AND GUIDELINES................2514 FEES AND PAYMENT................................................................................................2615 INTELLECTUAL PROPERTY RIGHTS......................................................................2616 ALIGNMENT IN LICENCE QUANTITIES (TRUE-UP)................................................2717 DATA PROTECTION AND CONFIDENTIALITY........................................................2818 AUDITS....................................................................................................................... 3219 WARRANTIES............................................................................................................3320 BROAD BASED BLACK ECONOMIC EMPOWERMENT..........................................3621 RISK OF LOSS...........................................................................................................3622 INDEMNITIES.............................................................................................................3723 PUBLICITY................................................................................................................. 3724 CO-OPERATION........................................................................................................3725 LIMITATION OF LIABILITY........................................................................................3726 TERMINATION...........................................................................................................3827 TERMINATION FOR CONVENIENCE........................................................................3928 EFFECT OF TERMINATION.......................................................................................3929 TERMINATION/EXPIRATION ASSISTANCE.............................................................3930 DISPUTES.................................................................................................................. 4031 FORCE MAJEURE.....................................................................................................4132 NON-EXCLUSIVITY....................................................................................................4133 NOTICES AND DOMICILIA........................................................................................4234 GENERAL................................................................................................................... 4335 BENEFIT OF THE AGREEMENT...............................................................................4536 APPLICABLE LAW AND JURISDICTION.................................................................4537 COSTS........................................................................................................................ 45
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38 SIGNATURE...............................................................................................................46ANNEXE "A" – SOFTWARE SCHEDULE...........................................................................48ANNEXE "B" – CHARGES SCHEDULE................................................................................11 GENERAL..................................................................................................................... 12 INVOICING REQUIREMENTS AND PAYMENT...........................................................13 TAX, DUTIES AND CURRENCY ISSUES....................................................................44 ADJUSTMENT IN CHARGES......................................................................................45 DISPUTED CHARGES AND INVOICING ERRORS.....................................................56 ONGOING SERVICES..................................................................................................67 CHARGES ON A TIME AND MATERIALS BASIS......................................................78 NEW SERVICES...........................................................................................................29 TERMINATION/EXPIRATION ASSISTANCE...............................................................210 EXTRAORDINARY EVENTS........................................................................................311 TERMINATION CHARGES...........................................................................................312 CESSATION UPON PARTIAL TERMINATION OR REDUCTION IN
REQUIREMENTS.........................................................................................................413 SERVICE LEVEL CREDITS.........................................................................................4APPENDIX B-1: SERVICE PRICING TABLES......................................................................5APPENDIX B-2: PERSONNEL RATES AND SKILL CLASSIFICATIONS............................6ANNEXE "C" – ATTACHMATE SOFTWARE MAINTENANCE AND SUPPORT SERVICES
SCHEDULE................................................................................................................... 11 SINGLE POINT OF CONTACT.....................................................................................12 CONTACT LOGGING SYSTEM INTEGRATION..........................................................23 RESOURCES................................................................................................................34 HOURS OF SERVICE...................................................................................................35 INCIDENT MANAGEMENT SERVICES.......................................................................36 PROBLEM MANAGEMENT SERVICES......................................................................87 CONSULTING SERVICES..........................................................................................148 MAINTENANCE AND SUPPORT SERVICES............................................................169 SUPPORT................................................................................................................... 1710 OTHER SERVICES.....................................................................................................1711 TRAINING................................................................................................................... 1812 CATEGORISATION OF PRIORITIES...........................................................................113 ESCALATION...............................................................................................................1ANNEXE "D" – SERVICE LEVELS........................................................................................21 GENERAL..................................................................................................................... 22 SERVICE LEVELS........................................................................................................23 CHANGES IN SERVICE LEVELS................................................................................34 STATUS OF SERVICE LEVEL CREDITS....................................................................3
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5 PERFORMANCE AGAINST SERVICE LEVELS..........................................................46 ACTIONS ON FAILURES.............................................................................................57 REPORTING.................................................................................................................68 ENTITLEMENT TO SERVICE LEVEL CREDITS.........................................................69 CALCULATION OF SERVICE LEVEL CREDITS.........................................................710 EXCUSED PERFORMANCE........................................................................................7APPENDIX D-1: SERVICE LEVELS AND SERVICE LEVEL CREDITS................................91 GENERAL..................................................................................................................... 92 MANUFACTURER NOTIFICATION SERVICE LEVEL................................................93 CONTACT RESPONSE SERVICE LEVEL...................................................................94 ONSITE PRESENCE SERVICE LEVEL.....................................................................105 TIME TO RESOLVE INCIDENTS SERVICE LEVEL..................................................10
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Confidential
TERMS AND CONDITIONS
This agreement does not constitute a final agreement between the parties. SARS
reserves the right to amend same, at its own discretion, at any point prior to
signature hereof.]
This agreement, effective as of __ (XXXX 20XX)_ ("Effective Date"), is entered into
by and between the South African Revenue Service, an organ of state established in
terms of the South African Revenue Service Act, 1997 (act no 34 of 1997) with its
registered address located at its Pretoria head office, 299 Bronkhorst street, Nieuw
Muckleneuk, 0181, the republic of South Africa ("SARS") and
____________________ [Service Provider's Company name] (Proprietary)
Limited, (registration no. ____________), a company incorporated under the laws of
the ____________________ with its registered address located at
______________________, the ( ___________________) ("Service Provider").
[NOTE TO THE BIDDER: THE ABOVE FIELDS MUST BE COMPLETED AS PART OF THE BIDDER’S CONTRACT MARK-UP RESPONSE]
WHEREBY THE PARTIES AGREE AS FOLLOWS -
1 INTERPRETATION
1.1 In this Agreement (as hereinafter defined) -
1.1.1 clause headings are for convenience only and are not to be used in its
interpretation;
1.1.2 an expression which denotes -
1.1.2.1 any gender includes the other genders; and
1.1.2.2 a natural person includes a juristic person and vice versa;
1.1.2.3 the singular includes the plural and vice versa.
1.2 In this Agreement, unless the context indicates a contrary intention, the
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following words and expressions bear the meanings assigned to them, and
cognate expressions bear corresponding meanings –
1.2.1 "Acceptance Testing" means the testing by the Customer of a specific
Deliverable or set of Deliverables for the purposes of determining
whether such Deliverable(s) complies with the Documentation;
1.2.2 "Agreement" means, collectively, the Agreement and all annexes and
appendices thereto;
1.2.3 "BBBEE" means broad-based black economic empowerment as defined
in the Broad-based Black Economic Empowerment Act, 2003 (Act No.
53 of 2003);
1.2.4 "BEE Codes" mean generally, the Codes of Good Practice on Black
Economic Empowerment gazetted by the Minister of Trade and Industry
under section 9 of the Broad-based Black Economic Empowerment Act,
2003 (Act No. 53 of 2003);
1.2.5 "BEE Generic Scorecard" means the balanced BBBEE scorecard
included in Code 000 Statement 000;
1.2.6 "BEE Status" means the BEE Status of the Service Provider based on
its Generic Scorecard as measured and certified by a verification agency
in accordance with the applicable BEE Codes;
1.2.7 "BEE Verification Certificate" means a certificate issued by a
Verification Agency, verifying the Service Provider's BEE Status level
and the details of its scorecard performance on the Elements of the
Generic Scorecard;
1.2.8 “Charges” means the amounts payable by the Customer to the Service
Provider for the Services as set forth in Annexe “B” (Charges Schedule)
hereto;
1.2.9 “Commercially Reasonable Efforts” means taking such steps and
performing in such a manner as a well-managed business would
undertake where such business or entity was acting in a determined,
prudent, and reasonable manner to achieve the particular result for its
own benefit provided always that such steps are within the reasonable
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control of the Party;
1.2.10 "Confidential Information" means-
1.2.10.1 in relation to SARS, subject to sub-clause 1.2.10.3 below in this
definition, any information or data of any nature, whether provided
orally or in writing or otherwise obtained and in any format or medium,
which –
1.2.10.1.1 is “taxpayer information”, which means any information provided
by a taxpayer or obtained by SARS in respect of the taxpayer,
including biometric information;
1.2.10.1.2 is ‘SARS Confidential Information’ as defined and regulated in
accordance with Chapter 6 of the Tax Administration Act, 2011,
(Act No 28 of 2011) and section 4 of the Customs and Excise Act,
1964 (Act No 91 of 1964);
1.2.10.2 in relation to Service Provider, subject to sub-clause 1.2.10.3
immediately below in this definition, any information or data of any
nature, whether provided orally or in writing and in any format or
medium, which is clearly designated in writing by Service Provider, at
the time of disclosure to SARS, as being Confidential Information,
and which written designation is in each case acknowledged by
SARS, by SARS initialling such designation;
1.2.10.3 does not include information that (i) is lawfully publicly available to, or
lawfully in the Receiving Party’s possession, at the time of disclosure
thereof by the Furnishing Party (whether before or after the Effective
Date) to the Receiving Party; or (ii) is independently developed or
learned by the Receiving Party without reference to or use of the
Confidential Information of the Furnishing Party; or (iii) is in or enters
the public domain without breach of this Agreement or any other
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obligation owed by the Receiving Party to the Furnishing Party; (iv)
the Receiving Party receives from a Third Party without restriction on
disclosure and without breach of a non-disclosure obligation; provided
always that notwithstanding the foregoing –
1.2.10.3.1 the onus will at all times rest on the Receiving Party to establish
that such information falls within such exclusions;
1.2.10.3.2 the information disclosed will not be deemed to be within the
foregoing exclusions merely because such information is
embraced by more general information that is publicly available or
in a Party’s possession;
1.2.10.3.3 any combination of features will not be deemed to be within the
foregoing exclusions merely because individual features are
publicly available or in a Party’s possession, but only if the
combination itself is publicly available or in a Party’s possession;
and
1.2.10.3.4 the determination of whether information is Confidential
Information will not be affected by whether or not such information
is subject to, or protected by, common law or statute related to
copyright, patent, trademarks or otherwise.
1.2.11 “Customer Data” means all information, whether or not Confidential
Information, entered into supported assets by or on behalf of SARS,
Governmental Entities and Taxpayers, and information derived from
such information, including as stored in, processed by, or transmitted
through the supported assets;
1.2.12 "Customer PPS&G" means the Customer’s policies, procedures,
processes, standards, guidelines, and other similar issuances (including
any updates, amendments or revisions) that are applicable to the
Services or the Service Provider from time to time, as communicated to
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the Service Provider by the Customer;
1.2.13 "Data" means any data as defined in the Electronic Communications
and Transactions Act, Act no 25 of 2002 and includes Personal
Information as defined in section 1 of Protection of Personal Information
Act No. 4 of 2013, and any other applicable legislation in the jurisdiction
where the Services are to be provided, supplied, stored, collected,
collated, accessed or processed on behalf of the Customer by the
Service Provider. In respect of the Customer, "Data" include
information relating to Taxpayers;
1.2.14 "Deliverable" means any materials that are provided by the Service
Provider to the Customer as part of the Services pursuant to this
Agreement, including the Software, Documentation, specifications or
other documentation and any deliverables under a Project;
1.2.15 "Deficiency" means any error, problem, non-conformity or defect
resulting from any Deliverable deviating from its documentation or
specifications; or incorrect or incomplete documentation;
1.2.16 "Disclosing Party" being either of the Parties referred to in clauses
1.2.26.1 and 1.2.26.2 whose Confidential Information is disclosed;
1.2.17 "Documentation" means the documentation to be furnished by the
Service Provider as set forth in this Agreement and as listed in Annexe
".........." hereto. [Note to Bidder: to be included in final agreement]
1.2.18 "Effective Date" means [_______________________], notwithstanding
the date of signature by the last signing Party hereto; [Note to Bidder: this will be the date upon which this agreement becomes effective. To be determined as per award if an award is made];
1.2.19 “Incident” means any event that is not part of the standard operation of
a service and which causes, or may cause, an interruption to, or a
reduction in, the quality of that service;
1.2.20 "Intellectual Property" means any know-how (not in the public
domain), invention (whether patented or not patented), design, trade
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mark (whether registered or not registered), or Copyright Material
(whether registered or not registered), goodwill, processes, process
methodology and all other identical or similar intellectual property as
may exist anywhere in the world and any applications for registration of
such intellectual property. For the purposes of this definition, "Copyright Material" means any Material in which copyright subsists;
1.2.21 "Losses" means all losses, liabilities, costs, expenses, fines, penalties,
damages and claims, and all related costs and expenses (including legal
fees on the scale as between attorney and own client, tracing and
collection charges, costs of investigation, interest and penalties).
1.2.22 "Agreement" means the terms and conditions contained in the main
body of this Attachmate Software Support and Maintenance Services
Agreement;
1.2.23 "Maintenance Services" means the performance of such scheduled
and/or preventative maintenance as may be required for the purpose of
ensuring the continued functionality of the Software with its
specifications and the Documentation, including the identification and
notification of Problems, the provision and installation of workarounds,
patches, bug-fixes, Upgrades, enhancements and New Releases and all
maintenance activities described in Annexe “C” hereto. For the
avoidance of doubt, the provisions of this clause 1.2.23 will apply in
respect of all copies of the Software used by the Customer, including
those used by the Customer for disaster recovery purposes.
1.2.24 "New Release" means a new release of the Software incorporating
Upgrades, bug-fixes or enhancements to the Software and which is
generally a replacement for the Software. For the sake of clarity, New
Releases are usually identified by a change in the version number, for
instance a change from version 1 to version 2;
1.2.25 “New Services” means additional services required by the Customer
from time to time, that are related to the Services;
1.2.26 "the Parties" means the parties to this Agreement, being -
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1.2.26.1 "Customer" which is the South African Revenue Service, an organ
of the State established in terms of the South African Revenue
Service Act 34 of 1997;
1.2.26.2 "Service Provider" which is [________________] Registration
Number [_________________], a company registered in the
Republic of South Africa, and its successors in title and permitted
assigns;
1.2.27 "Problem" means the underlying cause of one or more Incidents; or
may mean the occurrence of a problem or error in the Software reported
by the Customer to the Service Provider, including a Deficiency;
1.2.28 “Project” means a set of tasks and other work relating to the Services
that are requested by the Customer after the Effective Date and
performed by the Service Provider thereafter: provided that (a) the work
is discrete and non-recurring; (b) the work requires start-up, planning,
execution and closure, (c) the completion of the work is likely to result in
a change to the environment in which the Services are provided; and (d)
the work is not required for the Service Provider to:
1.2.28.1 meet the Service Levels,
1.2.28.2 meet the Service Provider’s current obligations under the Agreement,
or
1.2.28.3 meet any other obligations of the Service Provider under this
Agreement.
The Parties may agree to refer to other aggregations of work that do not
meet the requirements of this definition of the term ‘Projects’ as projects.
In such case, such Projects will be in scope and will not attract additional
charges;
1.2.29 "Receiving Party" means the Party, other than the Disclosing Party,
that receives disclosure of any Confidential Information;
1.2.30 "Repo Rate" means the interest rate (percent per annum) at which the
South African Reserve Bank lends money to private banks;
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1.2.31 "SANAS" means the South African National Accreditation System, a
national accreditation body recognised by the South African
Government;
1.2.32 "Services" means the services, functions and responsibilities provided
by the Service Provider to the Customer as detailed in this Agreement
and as they may evolve or be supplemented, enhanced, modified or
replaced in accordance with the terms of the Agreement; and in
particular means: (i) the Maintenance Services; (ii) the Support Services;
(iii) training Services; (iv) consultancy Services and any services related
to those detailed in (i) to (iv) above;
1.2.33 “Service Level” means a quantitative standard of performance of the
Services that Service Provider is required to satisfy in its performance of
the Services, as are detailed under Annexe “D”;
1.2.34 "Service Level Credit" means a penalty amount which will be payable
by the Service Provider for its failure to meet a Service Level;
1.2.35 "Service Level Failure" means the Service Provider's failure to meet a
Service Level;
1.2.36 "Software" means the Attachmate computer software programmes that
are licensed to the Customer by LICENSOR, including (i) those
Attachmate programme licences which are held by the Customer as at
the Effective Date; and (ii) any additional licensed Attachmate software
programmes which the Customer may procure licenses to (either itself or
as part of the Services from the Service Provider) during the Term.
Reference to the term "Software" will include any Upgrades and New
Releases of the Software. The Software which is licensed to the
Customer as at the Effective Date is detailed in Annexe "A" hereto.
Annexe “A” may be modified during the Term to incorporate details of
licenses granted to the Customer subsequent to the Effective Date;
1.2.37 "Software Licence Procurement Services" means, at the Customer's
specific request (which will be provided in the Customer's sole
discretion), the Service Provider's procurement of licences to the
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Software and related products on behalf of the Customer and delivery of
the Software and related products to the Customer;
1.2.38 "Staff" means any employee, independent contractor, agent, consultant,
sub-contractor or other representative of either Party;
1.2.39 "Support Services" means the provision of services by the Service
Provider to the Customer whereby the Service Provider resolves all
Incidents and Problems and provides consultancy and development
services in respect of or related to the Software to ensure the continued
functionality of the Software in accordance with its specifications and the
Documentation, which services may include the provision of telephonic
and on-site assistance, remote access support, bug fixes, work-arounds
and temporary fixes, patches and Upgrades and all support activities
described in Annexe “C” hereto. For the avoidance of doubt, the
provisions of this clause 1.2.39 will apply in respect of all copies of the
Software used by the Customer, including those used by the Customer
for disaster recovery purposes;
1.2.40 "Taxpayer" means a person who is subject to the tax laws and
regulations of the national or provincial governmental entities in South
Africa;
1.2.41 "Term" means the term of the Agreement which includes the Initial
Term and any Renewal Terms as defined in clause 3 below;
1.2.42 “Third Party” means any person or entity, whether an individual,
trustee, corporation, partnership, limited partnership, limited liability
company, trust, unincorporated organisation, business association, firm,
joint venture, governmental unit, agency or other body (other than the
Customer or Service Provider);
1.2.43 “Third Party service provider” means a Third Party which provides
goods or services which relate to the Services to SARS, either directly or
on a Pass Through Expense Basis;
1.2.44 "Time and Materials Basis" means the basis on which the Service
Provider will charge the Customer for services explicitly designated as
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such and which is based on the time spent and the materials utilised to
execute such services. All such time will be billed in accordance with
the time and materials rates set forth in Annexe "B" hereto;
1.2.45 "Upgrade" means any change or improvement to the Software or any
component thereof that relates to or affects the operating performance of
such Software or an aspect of such Software, but does not change the
basic operation or functionality of the Software. For the sake of clarity,
Upgrades are usually identified by a change in the version number, for
instance a change from version 1.1 to version 1.2; and
1.2.46 "Verification Agency" means a BEE Verification Agency contemplated
by the BEE Codes which, at the time of the issue of any certificate or
confirmation of any aspect of the Service Provider's BEE Status for
purposes of this Agreement, is -
1.2.46.1 a verification agency accredited by SANAS; or alternatively
1.2.46.2 a verification agency that has been issued with a valid pre-
assessment letter from SANAS.
1.3 Any substantive provision, conferring rights or imposing obligations on a
Party and appearing in any of the definitions in clause 1 or elsewhere in this
Agreement, will be given effect to as if it were a substantive provision in the
body of this Agreement.
1.4 Words and expressions defined in any clause will, unless the application of
any such word or expression is specifically limited to that clause, bear the
meaning assigned to such word or expression throughout this Agreement.
1.5 Terms other than those defined within this Agreement will be given their
plain English meaning, and those terms, acronyms, and phrases known in
the information technology industry will be interpreted in accordance with
their generally accepted meanings.
1.6 Subject to clauses 1.7, 1.8, 1.12, 1.13 and 1.14, defined terms appearing in
this Agreement in title case will be given their meaning as defined, while the
same terms appearing in lower case will be interpreted in accordance with
clause 1.5 above, and will, unless the context otherwise requires, include
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the terms as defined.
1.7 Reference to "days" will be construed as calendar days unless qualified by
the word "business", in which instance a "business day" will be any day
other than a Saturday, Sunday or public holiday as gazetted by the
government of the Republic of South Africa from time to time. Any
reference to "business hours" will be construed as being the hours
between 07h00 (seven o’clock in the morning) and 17h00 (five o’clock in
the afternoon) on any business day. Any reference to time will be based
upon South African Standard Time being Greenwich Mean Time plus 2
(two) hours.
1.8 Unless specifically otherwise provided, any number of days prescribed will
be determined by excluding the first and including the last day or, where the
last day falls on a Saturday, Sunday or public holiday as gazetted by the
government of the Republic of South Africa from time to time, the next
succeeding business day.
1.9 Where figures are referred to in numerals and in words, and there is any
conflict between the two, the words will prevail, unless the context indicates
a contrary intention.
1.10 No provision herein will be construed against or interpreted to the
disadvantage of a Party by reason of such Party having or being deemed to
have structured, drafted or introduced such provision.
1.11 The expiration or termination of this Agreement will 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.
1.12 The words "include" and "including" mean "include without limitation" and
"including without limitation". The use of the words "include" and
"including" followed by a specific example or examples will not be
construed as limiting the meaning of the general wording preceding it.
1.13 Any reference in this Agreement or any other agreement or document to
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"this Agreement" will be construed as a reference to this Agreement as
amended, varied, supplemented in accordance with the provisions of this
Agreement, or novated from time to time.
1.14 This Agreement incorporates the Annexes, which Annexes will have the
same force and effect as if set out in the body of this Agreement. In this
Agreement the words "clause" or "clauses"; and "Annexe" or
"Annexes" refer to clauses of; clauses of; and annexes to this Agreement
respectively.
2 INTRODUCTION
2.1 The Customer requires the specialist expertise and knowledge of the
Service Provider to perform the Services. The Service Provider represents
that it has the necessary expertise, skill, know-how, qualifications and
ability to undertake the work required in terms of the Services.
2.2 The Customer hereby appoints the Service Provider, and the Service
Provider hereby accepts such appointment, to perform the Services for the
Customer, upon the terms and conditions contained herein.
3 COMMENCEMENT AND DURATION
3.1 This Agreement will commence upon the Effective Date and will endure for
a period of 36 (thirty-six) months thereafter ("Initial Term") unless
terminated in accordance with the provisions of this Agreement.
3.2 Upon expiry of the Initial Term, the Customer has the right to renew this
Agreement for 2 (two) consecutive periods of 12 (twelve) months
("Renewal Term"), subject to either Party's right either before or after such
renewal, to terminate this Agreement in accordance with the provisions of
this Agreement.
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4 AGREEMENT STRUCTURE
4.1 Agreement
4.1.1 This Agreement provides a framework for, and the general terms
applicable to, the Services that the Service Provider will provide to the
Customer under this Agreement.
4.1.2 This Agreement is supplemented with annexes and appendices.
4.2 Annexes and appendices
4.2.1 By written agreement, the Parties may, from time to time, include under
the Agreement, additional annexes and appendices pertaining to the
Services provided by the Service Provider to the Customer under the
Agreement.
4.2.2 The provisions of this Agreement will, unless otherwise agreed in writing,
apply to each annexe and appendix hereto.
4.2.3 The Service Provider will provide the Services to the Customer subject
to the terms and conditions of the Agreement generally and subject to
the terms and conditions set forth in the relevant annexes and
appendixes hereto.
4.3 Proposals by the Service Provider
4.3.1 In the event that the Service Provider provides the Customer with a
proposal for Services, New Services and/or Projects pursuant to this
Agreement, the terms and conditions of such proposal will at all times be
subject to the terms and conditions of the Agreement. For the avoidance
of doubt, any terms and conditions incorporated in any proposal which
conflict with the terms and conditions of the Agreement will be null and
void.
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4.4 Order of precedence
In the event of a conflict between the Agreement and any annexe or
appendix hereto, the terms and conditions of this Agreement will prevail
over that contained in any annexe or appendix to this Agreement.
5 SOFTWARE PROCUREMENT SERVICES
5.1 During the Term, the Customer may, in its sole discretion, request the
Service Provider to provide the Software Licence Procurement Services.
5.2 Where the Customer requests the Service Provider to provide Software
Licence Procurement Services, the Service Provider will, prior to procuring
the Software, submit a pricing proposal to the Customer. The Service
Provider undertakes to achieve the best possible prices for Software
procured by it and will ensure that its pricing proposal will at a minimum
always apply the agreed discounts applicable to the Licensor list price for
the Software, as set forth in Appendix B-1 hereto.
6 MAINTENANCE AND SUPPORT SERVICES
6.1 Maintenance Services:
6.1.1 Service Provider responsibilities: The Maintenance Services will be
provided for the duration of this Agreement. In providing the
Maintenance Services, the Service Provider will-
6.1.1.1 promptly notify the Customer of any Upgrades or New Release of the
Software;
6.1.1.2 provide with each notification, release notes specifying: (i) the nature
of such Upgrades or New Release; and (ii) any adverse effects which
the Upgrades or New Release may be expected to have, including,
without limitation, any expected degradation in performance of the
Software. The Service Provider undertakes that such release notes
will contain sufficient information to enable the Customer to determine
whether such Upgrade or New Release will be appropriate to the
Customer's requirements. Should the Customer wish to review the
Upgrades or New Release, then the Customer will notify the Service
Draft Attachmate Software Maintenance & Support Services Agreement Page 18
Provider in writing accordingly;
6.1.1.3 procure, within 7 (seven) days of receipt of a notification referred to in
clause 6.1.1.2, that it delivers to the Customer the object code of the
Upgrade or New Release in machine readable form together with any
amendments to the Documentation (or updated Documentation, as
the case may be) which will be necessary to describe and enable
proper use of the improved facilities and functions of the Upgrade or
New Release;
6.1.1.4 ensure that it is available at all times during any Customer evaluation
period to provide assistance to the Customer in this respect; and
6.1.1.5 continue to provide any Maintenance Services and/or Support
Services to the Customer in respect of the release in use by the
Customer in the event that the Customer elects not to evaluate and/or
install the Upgrades or New Release.
6.1.2 Customer Responsibilities:
The Customer will, at its election evaluate the Upgrade or New Release
and will indicate to the Service Provider whether it wishes to install such
Upgrade or New Release.
6.1.3 Commencement of Maintenance Services:
6.1.3.1 The Service Provider will provide the Maintenance Services -
6.1.3.1.1 from the Effective Date and in respect of Software already installed
at the Customer prior to the Effective Date;
6.1.3.1.2 in respect of Software procured by the Service Provider under this
Agreement, from the date of installation of the Software by the
Customer; and
6.1.3.1.3 in respect of Software procured by a Third Party service provider
on behalf of the Customer after the Effective Date, from the date
that the Customer informs the Service Provider of the installation
of the Software.
Draft Attachmate Software Maintenance & Support Services Agreement Page 19
6.2 Support Services:
6.2.1 The following terms will apply to the Service Provider's provision of
Support Services:
6.2.1.1 The Service Provider will provide the Support Services in accordance
with the procedures detailed in Annexe "C" hereto.
6.2.1.2 The Support Services will be provided during business hours.
6.2.1.3 The Service Provider will, at its expense, supply all items necessary
or required for the Support Services.
6.2.1.4 Where the Software become defective, the Service Provider will
repair or replace same.
6.2.1.5 The Service Provider undertakes that in providing the Support
Services it will use its Commercially Reasonably Efforts to ensure that
the Software functions error-free and to maintain the Software's
continued compliance with its specifications and the Documentation.
The Service Provider will, on an ongoing basis apply its best
endeavours to provide proactive preventative maintenance and
advice in an effort to ensure that the Software will function error-free
and will continue to comply with its specifications and the
Documentation. In addition, the Service Provider will identify the
nature and cause of the Problem, advise the Customer thereof and
provide the Customer with future avoidance advice as well as
undertaking any necessary preventative measures to minimise
recurrence of the Problem.
6.2.2 Request for Support Services:
The Customer will request the assistance of the Service Provider with
regard to any Deficiencies in the Software which it may identify in
accordance with the procedure set forth in Annexe "C" hereto.
6.3 Training Services
The Service Provider will provide training Services related to the Software,
Draft Attachmate Software Maintenance & Support Services Agreement Page 20
to the Customer and/or the Customer’s Staff in accordance with Annexe
"C" or as requested by the Customer.
7 OTHER SERVICES
7.1 New Services
7.1.1 From time to time, the Customer may require New Services from the
Service Provider. In response to a request from the Customer, the
Service Provider will submit a proposal that complies with the terms of
this clause and this Agreement generally, within no later than 5 (five)
business days after Service Provider's receipt of the Customer’s request.
The proposal will be in writing and will contain: (i) sufficient detail as to
the New Services to be provided; (ii) an implementation plan; (iii) the
amount, schedule and method of payment; (iv) the timeframe for
performance; and (v) the applicable completion and acceptance criteria.
7.1.2 The Customer may in its sole discretion allocate Service Levels to New
Services.
7.1.3 If the Customer accepts the proposal for the provision of the New
Services, such services will be recorded in an annexe to this Agreement,
with such New Services being governed by the terms and conditions of
this Agreement.
7.1.4 For any services required by the Customer for which the Service
Provider wishes to tender or bid and which are the subject of the
Customer's general tender or procurement procedures, the Service
Provider will be required to comply with the specific requirements in
respect of such tender or procurement procedure and general
procurement policy requirements, notwithstanding anything to the
contrary set out in this Agreement. The Customer does not in any way
guarantee that the Service Provider will be the successful bidder should
it in fact be eligible to bid for the work in question.
7.2 Projects
7.2.1 The Service Provider will perform Projects upon request by the
Draft Attachmate Software Maintenance & Support Services Agreement Page 21
Customer. All Projects will be new initiatives over and above the
Services and will be recorded in separate annexes to this Agreement.
7.2.2 The Customer may, in its sole discretion, allocate Service Levels to
Projects.
7.2.3 The Customer may decide to perform Projects itself, award Projects to
the Service Provider, or award Projects to Third Party service providers
in its sole discretion.
7.2.4 It is agreed that with regard to any Projects which are awarded to a Third
Party service provider and which may have a direct impact or directly
interface or overlap with Services provided by the Service Provider
hereunder, the Service Provider agrees to cooperate with such Third
Party service provider, where necessary.
7.2.5 In the event that any Project is requested by the Customer, the Service
Provider will quote to the Customer a reasonable fee for such Project
and the Parties will promptly meet to discuss such quote and to
negotiate the scope of the Project in question. If the Parties do not reach
agreement, the Customer may elect in its sole discretion to have the
Service Provider perform the Project and the Service Provider will
perform the Project on a Time and Materials Basis. Additional expenses
or costs incurred by the Service Provider in respect of any Project for
hardware or materials used by the Service Provider as part of the
Project will only be chargeable to the Customer where the Customer has
pre-approved such expenses or costs in writing.
7.3 Consultancy Services
The Service Provider will provide ongoing consultancy services in the
Service Provider’s specialist fields of activity related to the operation and
improved/increased use of the Software, including the advice specified
in Annexure “C”, as may be reasonably requested by the Customer
from time to time in writing.
8 DELIVERY
Draft Attachmate Software Maintenance & Support Services Agreement Page 22
8.1 In the case of Software licenses procured by the Customer under this
Agreement and generally in respect of all Upgrades and New Releases, the
risk in and to the Software will only pass to the Customer upon delivery as
evidenced by the Customer's signature to the Service Provider's delivery
note. For the avoidance of doubt, the Service Provider will bear all liability
for any Deficiencies, including any latent or patent defects, identified by the
Customer.
8.2 Should any Deliverable be delivered to the Customer in a damaged or
substandard condition, the Customer will be entitled to return such
Deliverable to the Service Provider, at the Service Provider's cost, in which
event the Service Provider will refund to the Customer the full amount paid
by the Customer in respect thereof or replace the Deliverable with the
equivalent Deliverable, delivered in an acceptable condition.
9 ESCALATION PROCEDURES
Escalation of matters related to this Agreement will be in accordance with
each Party's respective escalation procedure, which procedure is set forth in
Annexe "C" hereto.
10 SERVICE COMPATIBILITY
10.1 The Service Provider will cooperate with all Third Party service providers of
the Customer to coordinate its provision of the Services with the services
and systems of such Third Party service providers. Subject to reasonable
confidentiality requirements, such cooperation will include providing: (a)
applicable written information concerning any or all of the Service Provider
resources, data and technology strategies used in providing the Services;
(b) reasonable assistance and support services to such Third Party service
providers; and (c) access to systems and architecture configurations of the
Service Provider to the extent reasonably required for the activities of such
Third Party service providers. The Customer will procure that relevant Third
Party service providers to the Customer provide the Service Provider with
their reasonable cooperation, where reasonably requested by the Service
Provider.
Draft Attachmate Software Maintenance & Support Services Agreement Page 23
10.2 The Service Provider will immediately notify the Customer if an act or
omission of a Third Party service provider may cause a problem (including
a Problem) or delay in providing the Services and will work with the
Customer to prevent or circumvent such problem or delay.
11 TESTING
11.1 Pre-delivery Testing
Prior to presenting any Deliverables (including any enhancements to the
Software, Upgrades, New Releases, bug fixes, work arounds or
patches) to the Customer for Acceptance Testing, the Service Provider
will carry out Pre-delivery Testing in order to ensure that the Deliverable
functions in accordance with the relevant specifications and the
Documentation for same.
11.2 Acceptance Testing
11.2.1 The Customer may elect to carry out Acceptance Testing of the
Deliverables and the Service Provider will be available to liaise with the
Customer regarding any queries arising with regard to a Deliverable and
its related documentation and will assist the Customer with its evaluation
of Deliverable and its related documentation.
11.2.2 Should the Customer not accept the Deliverable (and its related
documentation), the Customer will provide the Service Provider with
written notice of its non-acceptance. The Service Provider will correct
any Deficiencies within 24 (twenty four) hours of receiving the
Customer's notice, whereafter the Deliverable will be resubmitted to
Acceptance Testing in accordance with this clause.
11.2.3 If the Service Provider is unable to correct such Deficiencies within a
period of 14 (fourteen) days, the Customer will be entitled to a refund of
the fees paid for such Deliverable and related documentation and will
return the Deliverable and related documentation to the Service
Provider. Such refund will be made within 14 (fourteen) days of receiving
the Customer's notice of non-acceptance as contemplated in clause
11.2.2 above.
Draft Attachmate Software Maintenance & Support Services Agreement Page 24
11.2.4 The Service Provider will ensure that the Deliverable and any
enhancements, Upgrades, New Releases, bug fixes, work-arounds and
patches procured in terms of this Agreement are compatible with the
information technology and telecommunications standards and
architectures of the Customer. This information is available to the
Service Provider upon prior written request.
12 SUBCONTRACTORS
12.1 The Service Provider may not sub-contract its obligations under this
Agreement without the prior written consent of the Customer which consent
may be withheld by the Customer in its sole discretion.
12.2 Should the Customer consent to such appointment, the Service Provider
will in no event be relieved of its obligations under this Agreement as a
result of its use of any subcontractors. The Service Provider will at all times
be responsible to the Customer for fulfilment of all the Service Provider's
obligations under this Agreement and will remain the Customer’s sole point
of contact regarding the Services, including with respect to payment.
12.3 The Service Provider will supervise the activities and performance of each
subcontractor and will be jointly and severally liable with each such
subcontractor for any act or failure to act by such subcontractor.
13 HEALTH, SAFETY AND SECURITY PROCEDURES AND GUIDELINES
13.1 The Service Provider will ensure that its Staff will at all times, whilst on the
Customer's premises, adhere to the standard health, safety and security
procedures and guidelines applicable to the Customer's Staff, as such
procedures and guidelines may be changed by the Customer from time to
time and are available to the Service Provider on request. Should the
Customer at any time have reason to believe that any member of the
Service Provider's Staff is failing to comply with such standard health,
safety and security procedures and guidelines, the Customer will be entitled
to deny such member of Service Provider's Staff to any or all of the
Customer's premises and require the Service Provider to replace such
member of Staff without delay.
Draft Attachmate Software Maintenance & Support Services Agreement Page 25
13.2 The Service Provider hereby agrees and undertakes, in terms of section
37(2) of the Occupational Health and Safety Act, 1993, to ensure that the
Service Provider and the Service Provider's Staff comply with the aforesaid
Act and accept sole responsibility for all health and safety matters relating
to the provision of the Services, or in connection with or arising out of such
Services, for the duration of this Agreement, including with regard to the
Service Provider Staff and ensuring that neither the Customer's Staff nor
any Third Party service providers Staff's health and safety is endangered in
any way by the Service Provider's activities or conduct in providing the
Services.
14 FEES AND PAYMENT
The Charges applicable to the Services are set out in Annexe "B" hereto.
The relevant invoicing requirements and payment terms are also stipulated
in the aforementioned annexe.
15 INTELLECTUAL PROPERTY RIGHTS
15.1 The Customer retains all right, title and interest in and to the Customer's
Intellectual Property, including the Customer's Intellectual Property that is
used in connection with Services or incorporated into any deliverable
hereunder.
15.2 The Customer will retain all right, title and interest in and to all Deliverables
developed or generated for the Customer in terms of this Agreement. The
Service Provider hereby irrevocably assigns, transfers and conveys to the
Customer without further consideration all of its right, title and interest in
such Deliverables, including all Intellectual Property rights and/or other
proprietary rights in such materials and where such materials have not yet
been created, all future copyright therein (with immediate effect from the
date that such copyright comes into existence). Where the Service Provider
does not hold the right, title and interest in such Deliverables, including all
Intellectual Property rights and/or other proprietary rights in such materials,
the Service Provider will procure the rights as set out above for SARS from
the relevant Third Party service provider.
Draft Attachmate Software Maintenance & Support Services Agreement Page 26
15.3 Other than Third Party commercial, widely available off the shelf software
("Commercial Software"), the Service Provider will not introduce into the
Customer's environment any Third Party Intellectual Property for the
continued duration of this Agreement or otherwise use such Third Party
Intellectual Property to provide the Services without first obtaining the
Customer's consent thereto. The Service Provider will be responsible for
obtaining a licence on behalf of the Customer and in the Customer's name,
to use such Third Party Intellectual Property from the Third Party service
provider.
15.4 With respect to Third Party Intellectual Property that is Commercial
Software, the Service Provider will consult with the Customer before
implementing any Commercial Software. Such consultation will specifically
address, among other things, the Customer's options and costs at
expiration or termination. The Service Provider's rights to implement such
Commercial Software will be subject to the Service Provider's obligations in
respect of change control.
15.5 The Service Provider will not, without the Customer's express prior written
consent, use any Third Party Intellectual Property licensed to the Customer
for any purpose whatsoever. The Service Provider acknowledges that such
unauthorised use of Third Party Intellectual Property licensed to the
Customer may constitute a breach of the provisions of the license
agreement/s in terms of which such Third Party Intellectual Property is
licensed to the Customer. Should consent be granted to the Service
Provider to use Third Party Intellectual Property licensed to the Customer,
the Service Provider undertakes that it will only use such Intellectual
Property strictly in accordance with the provisions of the relevant consent.
16 ALIGNMENT IN LICENCE QUANTITIES (TRUE-UP)
16.1 Before the anniversary of the Effective Date of the Agreement, but no later
than within 20 (twenty) business days of the anniversary date of the
Effective Date, the Service Provider will present the Customer with a
reconciliation of the Attachmate licences deployed by the Customer and on
Customer devices. The Customer must respond within 10 (ten) business
Draft Attachmate Software Maintenance & Support Services Agreement Page 27
days to the Service Provider with disputes regarding the number of licences
reported.
16.2 In terms of the reconciliations for product licences that have been agreed
by the Customer, the true-up number will be the total number of Attachmate
product licences deployed in excess of the number of licences of the
Attachmate product that the Customer has previously purchased. The
true-up number will be calculated for each Attachmate product. The
Customer will be obliged to purchase the true-up number of licences for
each product where the true-up number is greater than zero. The Service
Provider will charge the Customer at the price of a new licence (excluding
any maintenance provision) plus 12 (twelve) months’ maintenance.
16.3 At any time during the Term the Service Provider may approach the
Customer with reports indicating the true-up number for any product.
16.3.1 The Customer must respond within 10 (ten) business days to Service
Provider with a dispute regarding the number of licences reported.
Subject to any dispute being resolved, the Customer will be obliged to
purchase the true-up number of licences for such a product where the
true-up number is greater than 1,000 (one thousand).
16.4 At any time during the Term, the Customer may approach Service Provider
with a request to purchase additional licences.
16.4.1 The Service Provider will provide the Customer with a quotation for such
additional licences (excluding any maintenance provision).
16.5 The Service Provider and the Customer will work together to resolve each
disputed item arising from this clause 16 in accordance with clause 30.
Draft Attachmate Software Maintenance & Support Services Agreement Page 28
17 DATA PROTECTION AND CONFIDENTIALITY
17.1 The Service Provider will not utilise the Customer's Data for any purpose
other than that of providing the Services under this Agreement.
17.2 The Service Provider will not possess or assert any lien or other right
against or to the Customer's Data.
17.3 No Customer's Data, or any part thereof, will be sold, assigned, leased, or
otherwise disposed of to Third Parties by the Service Provider or
commercially exploited by or on behalf of the Service Provider, its
employees or agents.
17.4 The Customer may at any time on written request to the Service Provider
require that the Service Provider immediately return to the Customer or
destroy any Customer Data and may, in addition, require that the Service
Provider furnish a written certification to the effect that upon such return it
has not retained in its possession or under its control, either directly or
indirectly, any such Customer Data or material.
17.5 The Service Provider will implement on or before the Effective Date, and
thereafter maintain, appropriate safeguards against the unauthorised
access to, and destruction, loss, or alteration of, the Customer's Data in the
Service Provider’s possession which safeguards are: (i) acceptable to the
Customer, and (ii) no less rigorous than the most rigorous of the practices
maintained by the Customer or the Service Provider as of the Effective
Date.
17.6 The Service Provider, together with its Staff and authorised sub-contractors
will be required to sign the Customer's Oath of Secrecy prior to performing
any Services.
17.7 The Receiving Party acknowledges the great importance of the Confidential
Information to the Disclosing Party and, where applicable, Third Party
proprietors of such information, and recognises that the Disclosing Party
and/or Third Party proprietors may suffer irreparable harm or loss in the
event of such information being disclosed or used otherwise than in
accordance with this Agreement. In this regard each Party will maintain the
Draft Attachmate Software Maintenance & Support Services Agreement Page 29
confidentiality of the other Party’s Confidential Information, using at least
the same efforts as it uses to maintain the confidentiality of its own
Confidential Information, and as otherwise required under applicable law,
the terms of this Agreement and the Customer's Oath of Secrecy.
17.8 The Receiving Party agrees and undertakes -
17.8.1 except as permitted by this Agreement, not to disclose or publish any
Confidential Information in any manner, for any reason or purpose
whatsoever without the prior written consent of the Disclosing Party and
provided that in the event of the Confidential Information being
proprietary to a Third Party, it will also be incumbent on the Receiving
Party to obtain the consent of such Third Party;
17.8.2 except as permitted by this Agreement, not to utilise, employ, exploit or
in any other manner whatsoever use the Confidential Information for any
purpose whatsoever without the prior written consent of the Disclosing
Party and provided that in the event of the Confidential Information being
proprietary to a Third Party, it will also be incumbent on the Receiving
Party to obtain the consent of such Third Party;
17.8.3 to restrict the dissemination of the Confidential Information to only those
of its Staff members who are actively involved in activities for which use
of Confidential Information is authorised and then only on a "need to
know" basis and the Receiving Party will reasonably initiate, maintain
and monitor internal security procedures to prevent unauthorised
disclosure by its Staff prior to giving any Staff, access to any Confidential
Information; and
17.8.4 to take all practical steps, both before and after disclosure, to impress
upon its Staff who are given access to Confidential Information the
secret and confidential nature thereof.
17.9 All Confidential Information disclosed by the Disclosing Party to the
Receiving Party or which otherwise comes to the knowledge of the
Receiving Party, is acknowledged by the Receiving Party -
17.9.1 to be proprietary to the Disclosing Party or where applicable, the
Draft Attachmate Software Maintenance & Support Services Agreement Page 30
relevant Third Party proprietor; and
17.9.2 not to confer any rights of whatsoever nature in such Confidential
Information on the Receiving Party.
17.10 The Receiving Party will protect the Confidential Information in the manner,
and with the endeavour, of a reasonable person protecting their own
Confidential Information. In no event will the Receiving Party use less than
reasonable efforts to protect the confidentiality of the Confidential
Information.
17.11 The Customer may retain Confidential Information to the extent required by,
and for the duration of, any Services performed for the Service Provider in
terms of agreements between the Parties, provided that the Service
Provider has not waived performance of such Services.
17.12 The Service Provider will procure that its Staff who have access to the
Confidential Information of the Customer, give a written undertaking in
favour of the Customer in regard to the Confidential Information on
substantially the same terms and conditions contained within this
Agreement in a form prescribed by the Customer. The Service Provider will
further procure that such Staff execute the Customer's standard Oath of
Secrecy. The Customer will be entitled to deny a Service Provider Staff
access to its premises or prevent such Staff member from conducting any
work in relation to the Services, should the Customer not be in receipt of a
signed undertaking from such Staff member. The Service Provider's failure
to obtain receipt of the undertaking referred to in this clause 17.12 will in no
way detract from the Service Provider's obligations in terms of this
Agreement and will be deemed a material breach of this Agreement.
17.13 Exceptions to this clause 17
17.13.1 The Parties record that this clause 17 will not be applicable where the
Receiving Party discloses Confidential Information to its attorneys or
auditors, provided that such disclosure is reasonably required by the
Receiving Party for the purposes of conducting its business activities.
17.13.2 The Parties record that notwithstanding any provision in this Agreement,
Draft Attachmate Software Maintenance & Support Services Agreement Page 31
the Customer may disclose any Confidential Information regarding the
Service Provider’s performance of the Services to the proprietor of the
Software.
17.14 In the event that the Receiving Party is required to disclose the Confidential
Information pursuant to any law, regulation or court order, the Receiving
Party –
17.14.1 will advise the Disclosing Party thereof prior to disclosure, if possible;
17.14.2 will take such steps to limit the extent of the disclosure to the extent that
it lawfully and reasonably practically can;
17.14.3 will afford the Disclosing Party a reasonable opportunity, if possible, to
intervene in the proceedings; and
17.14.4 will comply with the Disclosing Party's requests as to the manner and
terms of any such disclosure.
18 AUDITS
18.1 The Service Provider will allow the Customer, its auditors (including internal
audit Staff and external auditors) and inspectors as the Customer may from
time to time designate in writing, access at all reasonable times to any
facility or part of a facility at which either the Service Provider or any of its
subcontractors is providing the Services, to the Service Provider's Staff,
and its facilities, data and records relating to the Services for the purpose of
performing audits and inspections of either the Service Provider or any of
its subcontractors to (i) verify the accuracy of the Service Provider's
charges and invoices; (ii) verify the integrity of the Customer's Data; (iii)
examine the Service Provider's performance of the Services; and (iv) verify
compliance with this Agreement.
18.2 The Service Provider will provide to the Customer's auditors and inspectors
such assistance and co-operation as they may reasonably require. The
Customer will procure that any such audit will not unreasonably disrupt the
Service Provider's business operations and will comply with the Service
Provider's reasonable security or confidentiality requirements.
Draft Attachmate Software Maintenance & Support Services Agreement Page 32
18.3 The Service Provider will maintain a complete audit trail of all financial and
non-financial transactions resulting from the Agreement as is reasonably
necessary to give effect to the provisions of this clause 18. The Service
Provider will maintain and provide the Customer access upon request to
the records, documents and other information that make up such audit trail
until the later of: (i) 5 (five) years after termination of the Agreement; (ii) all
pending matters relating to the Agreement (e.g. disputes) are closed; or (iii)
such other period as is required by applicable law in relation to those
records, documents or other information.
18.4 The provisions of this clause 18 will apply to the Service Provider’s
subcontractors and the Service Provider will, prior to subcontracting any
Services, procure the subcontractor’s acceptance thereof.
19 WARRANTIES
19.1 General Warranties:
The Service Provider warrants that it will for the duration of this Agreement:
(i) use adequate numbers of qualified staff with suitable training,
accreditation, education, experience and skill to perform the Services; (ii)
use and adopt any standards and processes required under this
Agreement; and (iii) provide the Services with promptness and diligence
and in a workmanlike manner and in accordance with the practices and
high professional standards used in well-managed operations performing
services similar to the Services.
19.2 Intellectual Property warranties:
The Service Provider warrants that it will at all times perform its
responsibilities under this Agreement in a manner that does not infringe, or
constitute an infringement or misappropriation of, any Intellectual Property
or other proprietary rights of any Third Party.
19.3 Service Provider authority and Licensor undertaking:
19.3.1 The Service Provider warrants that it: (i) will at all times be authorised to
procure licenses from Licensor and that it will be authorised to support
Draft Attachmate Software Maintenance & Support Services Agreement Page 33
and maintain the Software by Licensor; (ii) has all the necessary
licences, certificates, authorisations and consents required under the
laws of the Republic of South Africa or under any other applicable
jurisdiction for the provision of the Software and/or Services under this
Agreement; (iii) will comply with all legal requirements and with the terms
and conditions of all licences, certificates, authorisations and consents
required for the provision of the Software and/or Services; and (iv) will
ensure that upon the date of delivery of the Software, possession or use
thereof by the Customer within the territories in which the Customer
takes receipt thereof will not breach any law or regulation of those
territories or of the territory from which the Software was sourced.
19.3.2 Should the Service Provider, for whatsoever reason and at any time
during the Term of this Agreement, no longer be appropriately
accredited or authorised to provide the Services, the Service Provider
will immediately inform the Customer thereof in writing and this
Agreement may, at the Customer’s option, be terminated immediately or
on such date as is determined by the Customer. The Service Provider
will be required to repay any pre-paid amounts that the Customer may
have paid in respect of the Services.
19.3.3 The Service Provider will obtain, within a period of 30 (thirty) days of the
Effective Date, a written undertaking from Licensor in favour of the
Customer confirming that Licensor will, in the event that the Service
Provider ceases to provide the Services to the Customer in terms of this
Agreement (whether as a result of the Service Provider losing its
accreditation or distributorship rights with Licensor, as a result of the
Service Provider ceasing to trade or going into liquidation or as a result
of a material breach by the Service Provider of this Agreement), take
over and continue to provide the Services to the Customer in
accordance with the terms of this Agreement or enlist a third party
service provider (acceptable to the Customer) to do so on its behalf,
such that there is a minimal or no disruption in the Services provision to
the Customer.
19.4 Product specific warranties:
Draft Attachmate Software Maintenance & Support Services Agreement Page 34
The Service Provider warrants that it will at all times: (i) ensure that any
Software and the Documentation will be free from Deficiencies and will
comply in all respects with the technical and functional specifications
therefore as agreed by the Parties; (ii) take all reasonable and necessary
steps to ensure that the Services and all Deliverables (including the
Software) will be free of Destructive Elements provided that where a
Destructive Element is a reasonable and necessary component of a
deliverable, such Destructive Element will be recorded in writing by the
Parties and will not constitute a breach of this warranty. In the event of a
breach of this warranty, the Service Provider will immediately take all
reasonable steps to remedy such breach or, if not possible, ameliorate the
impact of the Destructive Element; (iii) ensure that in respect of Software
which operate or are dependent on a Microsoft platform or operating
system, that such Software will, at all times, be and remain compatible and
operate in conjunction with the then current Microsoft Release; and (iv) the
Software and/or all components thereof, once installed and/or
implemented, will process any date and time data correctly and all date-
related output and results produced by the Software will comply with the
Gregorian calendar.
19.5 Regulatory requirements:
The Service Provider warrants that it is and will remain for the duration of
this Agreement, fully cognisant of and compliant with any relevant
legislative or regulatory requirements and/or rulings or codes of practice of
any competent authority or industry body that has jurisdiction over the
provision of or is relevant to the Services and/or Software. The Service
Provider will be responsible for any fines and penalties arising from any
non-compliance with any law, legislative enactment or regulatory
requirement, code or ruling of any competent authority or industry body
relating to the delivery or use of the Services.
19.6 Documentation:
The Service Provider warrants that it will provide and maintain
Documentation so that it: (i) accurately reflects the operations and
capabilities of any and all Software and training courses; (ii) is accurate,
Draft Attachmate Software Maintenance & Support Services Agreement Page 35
complete and written in a manner easily understood by the Customer; and
(iii) is promptly updated from time to time to reflect any change.
19.7 Tax Clearance:
The Service Provider warrants that, as of the Effective Date, it is and will for
the duration of the Agreement remain compliant with all applicable laws and
regulations relating to taxation in the Republic of South Africa. The Service
Provider warrants further that it will deliver to the Customer, on the Effective
Date and on each anniversary thereof for the duration of the Agreement, a
valid tax clearance certificate issued for the then-current year. If the
Service Provider fails to provide such a certificate, the Customer may
terminate the Agreement in accordance with the provisions of clause 26.2
below. The Customer will have no liability to the Service Provider with
respect to such termination.
20 BROAD BASED BLACK ECONOMIC EMPOWERMENT
20.1 The Service Provider warrants that for the duration of this Agreement it will,
at a minimum, maintain a BEE Status level of a Level ________
Contributor, based on the BEE Generic Scorecard.
20.2 The Service Provider will be required to provide a Verification Certificate to
the Customer on an annual basis on each anniversary of the Effective
Date; and prior to the expiry of the Service Provider's previously applicable
certificate.
20.3 The Customer may, at its own cost and in its sole discretion, audit (whether
by internal or external auditors) all information provided by the Service
Provider in terms of this clause, provided that where such audit exercise
reveals discrepancies and inaccuracies in the information provided by the
Service Provider to the Customer (other than for minor or insubstantial
discrepancies), the cost of such audit will be borne by the Service Provider.
21 RISK OF LOSS
Subject to clause 8, each Party will be responsible for risk of loss of, and
damage to, any hardware or other asset of the other in its possession or under
Draft Attachmate Software Maintenance & Support Services Agreement Page 36
its control. Any hardware in the possession or control of the Service
Provider’s subcontractors or agents (including couriers, freight companies and
the like) will be deemed to be under the control of the Service Provider.
22 INDEMNITIES
22.1 General indemnity:
Without in any way detracting from the rights of the Customer in terms of
this Agreement, the Service Provider hereby indemnifies and holds the
Customer harmless from any and all Losses which may be suffered as a
result of any breach of the provisions of this Agreement by the Service
Provider or its Staff.
22.2 Intellectual Property indemnity:
In addition to any other remedy available to the Customer, the Service
Provider irrevocably and unconditionally agrees to indemnify in full and on
demand and to keep the Customer so indemnified from and against all
claims, demands, actions, proceedings and all Losses, costs and expenses
(including legal and other professional advisers’ fees), which are made or
brought against or incurred or suffered by the Customer resulting from any
claim by a Third Party that the use by the Customer of the Software and its
related Documentation supplied by the Service Provider infringes the
Intellectual Property rights of that Third Party.
23 PUBLICITY
No announcements relating to this transaction and of any nature whatsoever
will be made by or on behalf of a Party relating to this transaction without the
prior consent of the other Party.
24 CO-OPERATION
The Parties undertake at all times to co-operate with each other in good faith
in order to carry out this Agreement.
25 LIMITATION OF LIABILITY
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25.1 The Parties agree that, in the event of a breach of any of the provisions of
the Agreement, the defaulting Party will be liable to the other Party for all
Losses which constitute direct and/or general damages.
25.2 Subject to clauses 25.3 and 25.4, the Parties agree that, in the event of a
breach of any of the provisions of the Agreement, the defaulting Party will
not be liable to the other Party for any Losses which constitute indirect,
special and/or consequential damages.
25.3 Notwithstanding anything to the contrary set forth in clause 25.2 above or
the Agreement in general, the Parties agree that they will be liable to the
other for -
25.3.1 Losses which constitute indirect, special and/or consequential damages
where such damages are caused by a breach of any Intellectual
Property and/or Confidential Information undertaking contained in the
Agreement; and
25.3.2 all Losses which arise out of their dishonesty or gross negligence
regardless of whether such Losses arise out of contract or delict; and/or
25.3.3 any Third Party claims arising from or related to the death or bodily injury
of any agent, employee, customer, business invitee, or other person
caused by the delictual conduct of such Party.
25.4 Notwithstanding anything to the contrary set forth in this clause 25 or the
Agreement in general, the Service Provider agrees that it will be liable to
the Customer for all Losses (whether these are special, indirect or
consequential, direct and/or general damages and which will not be subject
to any limitation of liability) where the Losses incurred by the Customer are
occasioned by the breach by the Provider of the provisions of clause 19
above.
26 TERMINATION
26.1 If a Party commits a material breach of this Agreement and fails to remedy
such breach within 14 (fourteen) days of written notice requiring the breach
to be remedied, then the Party giving the notice will be entitled, at its option,
Draft Attachmate Software Maintenance & Support Services Agreement Page 38
either to claim specific performance of the defaulting Party's obligations
whether or not such obligations have fallen due for performance (with or
without claiming damages) or to cancel this Agreement (with or without
claiming damages) in which case the cancellation will take effect on the
date of the notice.
26.2 If the Service Provider fails to adhere to any legal requirement or breaches
the provisions of clause 19 above and/or any term or condition of any
licence, authorisation or consent required for the provision of the Services
and which failure or breach the Customer, in its sole discretion, considers
to be detrimental to the Customer; then the Customer will be entitled, but
not obliged, to immediately terminate this Agreement on written notice to
the Service Provider, in which event such termination will be without any
liability to the Customer and without prejudice to any claims which the
Customer may have for damages against the Service Provider.
26.3 A Party's remedies in terms of this clause 26 are without prejudice to any
other remedies to which such Party may be entitled in law.
27 TERMINATION FOR CONVENIENCE
The Customer may terminate this Agreement for convenience and without
cause at any time by giving the Service Provider at least 90 (ninety) days prior
written notice designating the termination date. The Customer will have no
liability to the Service Provider with respect to any such termination, other than
pro rata refunding to the Service Provider such actual annual maintenance
fees that the Service Provider may have paid to the Licensor on the
Customer’s behalf and cannot using reasonable commercial efforts recover
from the Licensor. The Service Provider must provide the Customer with
proof, acceptable to the Customer, of such payment.
28 EFFECT OF TERMINATION
The termination of this Agreement will not relieve the Parties hereto of any
liabilities, obligations, expenses or charges accruing up to date of such
termination and all rights accruing to either Party to the said date of
termination will likewise remain in full force and effect.
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29 TERMINATION/EXPIRATION ASSISTANCE
On termination of this Agreement, the Service Provider will, at no additional
cost to the Customer, provide all reasonable information and assistance to the
Customer to enable the Customer or a Third Party designated by the
Customer to take over the Service Provider's obligations under this
Agreement.
30 DISPUTES
30.1 In the event of there being a dispute, but save where otherwise provided in
this Agreement, such dispute will be resolved in accordance with the rules
of the Arbitration Foundation of Southern Africa ("AFSA") as provided for
below.
30.2 In the event of any such dispute arising between the Parties relating to or
arising out of this Agreement, including a dispute as to the validity,
implementation, execution, interpretation, rectification, termination or
cancellation of this Agreement, the Parties will forthwith meet to attempt to
settle such dispute, and failing such settlement within a period of 14
(fourteen) days of first meeting, the said dispute will on written demand by
either Party be submitted to arbitration in Johannesburg in accordance with
the rules of AFSA.
30.3 Should the Parties fail to agree in writing on an arbitrator within 10 (ten)
days after arbitration has been demanded, the arbitrator will be nominated
at the request of a disputant by AFSA.
30.4 The decision of the arbitrator will be binding on the Parties to the arbitration
after the expiry of the period of 20 (twenty) days from the date of the
arbitrator's ruling if no appeal has been lodged by any Party. A decision
which becomes final and binding in terms of this clause 30.4 may be made
an order of court at the instance of any Party to the arbitration.
30.5 Nothing herein contained will be deemed to prevent or prohibit a disputant
from applying to the appropriate Court for urgent relief or for judgment in
relation to a liquidated claim.
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30.6 Any arbitration in terms of this clause 30 will be conducted in camera and
the Parties will treat as confidential and not disclose to any Third Party
details of the dispute submitted to arbitration, the conduct of the arbitration
proceedings or the outcome of the arbitration, without the written consent of
all the disputants.
30.7 The provisions of this clause 30 will continue to be binding on the Parties
notwithstanding any termination or cancellation of the Agreement.
31 FORCE MAJEURE
31.1 Delay or failure to comply with or breach of any of the terms and conditions
of this Agreement by either Party if occasioned by or resulting from an act
of God or public enemy, fire, explosion, earthquake, perils of the sea, flood,
storm or other adverse weather conditions, war declared or undeclared,
civil war, revolution, civil commotion or other civil disorder, sabotage, riot,
strikes, lock-outs or other labour disputes, blockade, embargo, sanctions,
epidemics, act of any Government or other Authority, compliance with law,
regulations or demands of any Government or Governmental agency,
limitations imposed by exchange control or foreign investment or other
similar regulations or any other circumstances of like or different nature
beyond the reasonable control of the Party so failing, will not be deemed to
be a breach of this Agreement nor will it subject either party to any liability
to the other. It is understood that neither Party will be required to settle any
labour dispute against its will.
31.2 Should either Party be prevented from carrying out any contractual
obligation by any circumstance described above, such obligation will be
postponed provided the Party suffering such circumstance notifies the other
Party to this Agreement within 7 (seven) days of becoming aware thereof.
The Parties will thereupon promptly meet to determine whether an
equitable solution can be found.
31.3 Should such force majeure circumstance last continuously for a period of
14 (fourteen) days, and no mutually acceptable arrangement is arrived at
by the parties at within a period of 7 (seven) days thereafter, either Party
will be entitled to terminate the Agreement with immediate effect.
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32 NON-EXCLUSIVITY
32.1 The Service Provider is appointed to provide the Services to the Customer
on a non-exclusive basis and the Customer shall not be precluded from
obtaining services that may be similar or identical to the Services from any
other service provider.
32.2 Nothing contained herein shall in any way be construed or constitute a
guarantee in favour of the Service Provider that the Service Provider will
receive any work or contract from the Customer for services in the future,
whether under this Agreement or otherwise.
33 NOTICES AND DOMICILIA
33.1 Domicilia:
The Parties choose as their respective domicilia citandi et executandi for the
purpose of legal proceedings and for the purposes of giving or sending any
notice provided for or necessary in terms of this Agreement, the following
addresses –
Name Physical Address TelefaxCustomer Office of the Commissioner
Block A299 Bronkhorst StreetNieuw MuckleneukPretoria0181
(marked for the urgent attention of the Group Executive: Corporate Legal Services)
Office of the Commissioner(012) 422 5250
(marked for the urgent attention of the Group Executive: Corporate Legal Services)
Name Physical Address TelefaxService Provider
provided that a Party may change its domicilium to any other physical
address or telefax number by written notice to the other Party to that effect.
Such change of address will be effective 7 (seven) days after receipt of the
notice of the change of domicilium.
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33.2 Notices:
All notices to be given in terms of this Agreement will be in writing and -
33.2.1 if delivered by hand during business hours, be rebuttably presumed to
have been received on the date of delivery;
33.2.2 if sent by telefax during business hours be rebuttably presumed to have
been received on the date of successful transmission of the telefax; any
telefax sent after business hours or on a day which is not a business day
will rebuttably be presumed to have been received on the following
business day.
33.3 Actual receipt:
Notwithstanding the above, any notice given in writing, including one sent
by data message, actually received by the Party to whom the notice is
addressed, will be deemed to have been properly given and received,
notwithstanding that such notice has not been given in accordance with the
provisions of this clause.
33.4 The Parties record that whilst they may correspond via e-mail during the
currency of this Agreement for operational reasons, no formal notice
required in terms of this Agreement, nor any amendment or variation to this
Agreement may be given or concluded via e-mail.
34 GENERAL
34.1 Whole agreement:
This Agreement constitutes the whole of the agreement between the
Parties hereto relating to the matters dealt with herein and, save to the
extent otherwise provided herein, no undertaking, representation term or
condition relating to the subject matter of this Agreement not incorporated
in this Agreement will be binding on any of the Parties.
34.2 Addition, variation, deletion and cancellation:
No addition to or variation, deletion, or agreed cancellation of all or any
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clauses or provisions of this Agreement will be of any force or effect unless
in writing and signed by the Parties.
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Confidential
34.3 Waiver:
No waiver of any of the terms and conditions of this Agreement will be
binding or effectual for any purpose unless in writing and signed by the
Party giving the same. Any such waiver will be effective only in the specific
instance and for the purpose given. Failure or delay on the part of either
Party in exercising any right, power or privilege hereunder will not constitute
or be deemed to be a waiver thereof, nor will any single or partial exercise
of any right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
34.4 Cession, assignment, delegation:
Save as otherwise herein provided, neither this Agreement nor any part,
share or interest therein nor any rights or obligations hereunder may be
ceded, assigned, delegated or otherwise transferred without the prior
written consent of the other Party.
34.5 Severability:
All provisions and the various clauses of this Agreement are,
notwithstanding the manner in which they have been grouped together or
linked grammatically, severable from each other. Any provision or clause
of this Agreement which is or becomes unenforceable in any jurisdiction,
whether due to voidness, invalidity, illegality, unlawfulness or for any other
reason whatever, will, in such jurisdiction only and only to the extent that it
is so unenforceable, be treated as pro non scripto and the remaining
provisions and clauses of this Agreement will remain of full force and effect.
The Parties declare that it is their intention that this Agreement would be
executed without such unenforceable provision if they were aware of such
unenforceability at the time of execution hereof.
34.6 Consent or approval:
Any consent or approval required to be given by any Party in terms of this
Agreement will, unless specifically otherwise stated, not be unreasonably
withheld.
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34.7 Counterparts:
This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, and all of which together will constitute
one and the same Agreement as at the date of signature of the Party last
signing one of the counterparts. The Parties undertake to take whatever
steps may be necessary to ensure that each counterpart is duly signed by
each of them without delay.
35 BENEFIT OF THE AGREEMENT
This Agreement will inure for the benefit of and be binding upon the
successors in title and permitted assigns of the Parties hereto or any of them.
36 APPLICABLE LAW AND JURISDICTION
36.1 Applicable law:
This Agreement will in all respects be governed by and construed under the
laws of the Republic of South Africa.
36.2 Jurisdiction:
The Parties hereby irrevocably and unconditionally consent to the non-
exclusive jurisdiction of the North Gauteng High Court, Pretoria in regard to
all matters arising from this Agreement.
37 COSTS
Save as may be otherwise provided herein, each Party will bear and pay its
own legal costs and expenses of and incidental to the negotiation, drafting,
preparation and implementation of this Agreement.
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Confidential
38 SIGNATURE
The Parties agree that this Agreement will not be valid unless signed by 2
(two) authorised signatories of the Customer. The Service Provider’s company
secretary will upon request furnish the Customer with such documentation as
may reasonably be required by the Customer to establish the authority of the
Service Provider signatories. Signed on behalf of the Parties, each signatory
hereto warranting that he or she has due authority to do so.
SIGNED at _________________________
For and on behalf of SOUTH AFRICAN REVENUE SERVICE
Signature Signature
Name of Signatory Name of Signatory
Designation of Signatory Designation of Signatory
Date: Date:
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SIGNED at _________________________ on _________________________
For and on behalf of
[SERVICE PROVIDER NAME]
Signature
Name of Signatory
Designation of Signatory
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ANNEXE "A" – Software Schedule
(* Note: Annexe “A” will be updated from time to time to reflect the Customer’s
actual [XXX] license holding).
[Note to Bidder: This is will be populated prior to contract signature. Note the requirement of the tender for the Bidder to ascertain the currently licensed Licensor products from Licensor]
Draft Attachmate Software Maintenance & Support Services Agreement Page 49
Confidential
ANNEXE "B" – Charges Schedule
1 GENERAL
1.1 This Annexe “B” (Charges Schedule) details how the Charges payable by
the Customer to the Service Provider pursuant to this Agreement are to be
calculated, invoiced and paid.
1.2 Charges under this Annexe “B” (Charges Schedule) are the only amounts
payable by the Customer to the Service Provider for the Services or
otherwise in connection with this Agreement, and no other charges,
expenses, costs or other amounts incurred by the Service Provider will be
chargeable to or payable by the Customer to the Service Provider, except
as provided in clause 8 of this Annexe "B".
1.3 Unless otherwise specifically provided in this Agreement, the Charges will
include all incidental expenses (e.g. travel and lodging, document
reproduction and shipping) that the Service Provider incurs in performing
the Services. Prices for New Services and Projects under clause 8 of this
Annexe must similarly include all incidental expenses.
1.4 The Service Provider will not be entitled to (i) impose or seek payment of
any amounts or charges under the Agreement other than the Charges; (ii)
establish any new types of charges under the Agreement; or (iii) modify any
of the Charges under the Agreement; unless the Customer has agreed
thereto in writing.
2 INVOICING REQUIREMENTS AND PAYMENT
2.1 Except as expressly set forth in this Annexe "B" or elsewhere in the
Agreement, the Service Provider will invoice the Customer for the Charges
(other than for Projects) on a monthly basis in arrears on or before the 5 th
(fifth) business day of the month following the month in which the Services
were performed or the applicable Software was accepted by the Customer.
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2.2 Projects will be invoiced monthly, upon the Customer’s acceptance of
delivery milestones, unless otherwise agreed between the Parties.
2.3 Each invoice provided by the Service Provider will contain or have attached
such information, and be in such form and on such media as the Customer
may reasonably request.
2.4 Subject to clause 2.4 of this Annexe, invoiced Charges will be reduced by 1
(one) percent if the Customer does not receive the invoice by the 20th
(twentieth) day of the month in which the Service Provider is obligated to
deliver such invoice; and by consecutive further reductions of 1 (one)
percent for each month thereafter until the Customer receives the invoice.
2.5 The Customer will not be obliged to pay any amounts that are invoiced
more than 120 (one hundred and twenty) days after the Services were
rendered.
2.6 Each invoice will consist of or have attached:
2.6.1 a statement of the total amount due which will be itemised per Service.
The Service Provider will provide to the Customer the calculation of the
Charges under the algorithms of this Annexe “B";
2.6.2 the Service Provider’s estimate of the Charges that are to be approved
by the Customer for any work to be performed by the Service Provider
Staff on a Time and Materials Basis prior to commencement of such
work;
2.6.3 copies of daily time cards signed by an authorised Customer
representative and the reference number generated by the Customer’s
service desk for any work performed by the Service Provider Staff on a
Time and Materials Basis; and
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2.6.4 any additional details and information reasonably specified by the
Customer, in the format reasonably specified by the Customer from time
to time.
2.7 The Service Provider will maintain complete and accurate records of, and
supporting documentation for, the amounts invoiced to and payments made
by the Customer hereunder in accordance with generally accepted South
African accounting practice (compliant with IAS and IFRS) applied on a
consistent basis.
2.8 Within 10 (ten) days after the Customer’s request, the Service Provider will
provide the Customer with any other documentation or information
reasonably required in order to verify the accuracy of the Charges on an
invoice and its compliance with the requirements of the Agreement.
2.9 The Service Provider will verify that each invoice is complete and accurate
and that it conforms to the requirements of the Agreement (including by
carrying out detailed checks of each invoice) before issuing the invoice to
the Customer.
2.10 The Service Provider will provide appropriately skilled Service Provider
Staff as the Customer’s point of contact for answering invoicing queries.
Such individuals will respond promptly to any billing queries. If required by
the Customer, such Service Provider Staff will meet with the applicable
Customer Staff to review a draft of the invoice, prior to the issuance of each
invoice.
2.11 The Customer will pay undisputed Charges to the Service Provider
following receipt of each invoice that is accurate and meets the
requirements of this Agreement. The due date for such payment will be 30
(thirty) days from the Customer's receipt of the invoice.
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2.12 The Customer may set off any amounts due from the Service Provider
pursuant to this Agreement against any Charges payable by the Customer
pursuant to this Agreement. If the amounts payable by the Service
Provider to the Customer exceed the Charges payable by the Customer to
the Service Provider pursuant to an outstanding invoice under this Annexe
“B” then, at the Customer’s option, the Service Provider will either (i) issue
a credit note for the net amount which the Customer may set off against
any other invoices rendered by the Service Provider; or (ii) pay the amount
to the Customer.
3 TAX, DUTIES AND CURRENCY ISSUES
3.1 Unless otherwise specified, all Charges and expenses are recorded
inclusive of Value Added Tax. The Service Provider will be financially
responsible for all taxes associated with the Services and will comply with
all applicable laws relating to tax and tax invoices.
3.2 All Charges, fees and expenses set out in this Agreement are inclusive of
any export and import tax.
3.3 The Charges are stated in South African Rand and will be quoted, invoiced
and paid in South African Rand. Subject only to the adjustments
contemplated in clause 4 of this Annexe “B”, the Charges are not subject
to adjustment due to any currency fluctuations for the duration of the
Agreement.
4 ADJUSTMENT IN CHARGES
4.1 The monthly Charge for Maintenance Services and Support Services will
be adjusted in accordance with clause 6.1 of this Annexe “B”.
4.2 The Personnel rates for Support (both during and outside business hours),
as per Annexe “A” will be fixed for the Initial Term.
4.3 Any adjustment of the Personnel rates for Support will be subject to written
agreement between the Parties.
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4.4 On the first anniversary of the Effective Date, and on each subsequent
anniversary upon which this Agreement is operative, the Parties will meet
to discuss an adjustment of the Charges, based on the following formula:
4.4.1 [Note to Bidders – details of Bidder response to the Pricing Tables
in the RFQ will be incorporated into the final agreement]
In reaching any agreement on an adjustment to the Charges, the Customer
agrees to consider reasonable sensitivity factors advanced by the Service
Provider.
5 DISPUTED CHARGES AND INVOICING ERRORS
5.1 The Customer may withhold payment of any charges and/or Charges that
the Customer disputes in good faith (or, if the disputed charges have
already been paid, the Customer may withhold an equal amount from a
later payment), including disputes in respect of an error in an invoice or an
amount paid. If the Customer withholds any such amount:
5.1.1 the Customer will promptly notify the Service Provider that it is disputing
such charges and/or Charges; and
5.1.2 the Parties will promptly address such dispute in accordance with clause
30 of the Agreement.
5.2 If the dispute relates to (or is equal to (in the case of disputed charges that
have already been paid by the Customer)) only certain of the Charges
included on an invoice, then the Customer will pay the undisputed amounts
in accordance with the provisions of this Annexe "B".
5.3 If an invoice is identified as incorrect by the Customer, the Service Provider
will either (i) issue a correct invoice if the amount stated on the invoice has
not yet been paid; or (ii) make a correction on the next invoice if the amount
has been paid by the Customer; provided, however, that Service Provider
will refund any overpayments with interest calculated at the Repo Rate for
the number of days from the date of the Customer’s payment to the date of
the refund. The Customer will not be responsible for paying interest on
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undercharged amounts, if any.
6 ONGOING SERVICES
6.1 Services
6.1.1 For purposes of this clause 6.1, "Software" will mean the Attachmate
computer software programmes licensed to the Customer. For the
avoidance of doubt, the meaning assigned to the term "Software" in the
Agreement shall not apply to this clause 6.1.
6.1.2 The annual Charge for Maintenance Services and Support Services will
be divided into 12 (twelve) equal monthly payments (“monthly Charge for Maintenance”) and will be invoiced to the Customer monthly in
arrears.
6.1.3 The Customer’s Software holding at the Effective Date is set out in
Annexe “A” and the monthly Charge for Maintenance, calculated in
accordance with clauses 6.1.2 and 6.1.4 of this Annexe “B”, is [R ____].
6.1.4 The annual Charge for the Service Provider’s provision of the
Maintenance Services and Support Services will be less than or equal to
_____% (_____________ percent) of the then current list price of the
Software and shall apply on a per license basis. For purposes of clarity,
the annual Charge shall be calculated by (i) determining the percentage
of the then current list price of the Software (which shall not be a
percentage higher than _____% (____________ percent); (ii) multiplying
the applicable percentage referred to in (i) above by the then current list
price of the Software; and (iii) multiplying the value determined in (ii)
above by the number of Software licenses held by the Customer.
6.1.5 The annual Charge for Maintenance Services and Support Services
(and the monthly Charge for Maintenance) will be adjusted pro rata from
the beginning of the month following the month in which the Customer
increased or decreased its Software holding.
6.2 Training Services
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In respect of training services provided by the Service Provider to the
Customer, the Service Provider will provide the Customer with a
quotation for such training Services as the Customer may from time to
time require. The Service Provider will only commence rendering the
training Services on the receipt of a valid Customer purchase order for
such training Services. Any training Services will be provided on a Time
and Materials Basis and in accordance with the provisions of this
Annexe "B".
7 CHARGES ON A TIME AND MATERIALS BASIS
7.1 In accordance with and subject to the provisions of the Agreement, certain
Services and Projects are to be charged on a Time and Materials Basis.
This method of charging and the amount to be charged will at all times be
subject to the Customer's written pre-approval. Time and Materials Charges
will be the product of the units of time (e.g., hour, day) and the applicable
personnel rates detailed in Appendix B-2 (Personnel Rates and Skill
Classifications) ("Personnel Rates").
7.2 Personnel Rates are set forth by skill classification and on an hourly, daily,
weekly, monthly and quarterly basis. If there is no Personnel Rate for a
skill classification required for the performance of the work to be performed
on a Time and Materials Basis, the Service Provider’s rate for such skill set
will be the lowest rate applicable for the next closest skill set specified in
Appendix B-2 (Personnel Rates and Skill Classifications), which will be
subject to written approval by the Customer.
7.3 Chargeable Time
7.3.1 For Services performed on a Time and Materials Basis, the Service
Provider may charge for travel time only if the Staff performing such
Services are required to travel to a Customer’s office other the
Customer’s offices located in the Head Office Campus in Brooklyn,
Pretoria.
7.3.2 The Service Provider's Staff will accurately complete daily time sheets
showing the actual time spent performing the work that is chargeable on
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a Time and Materials Basis.
7.3.3 The Service Provider will perform the work to be performed on a Time
and Materials Basis in a productive and efficient manner (including using
Service Provider Staff charged at the lowest appropriate rate).
7.4 The Service Provider will not charge the Customer for time spent by
Service Provider Staff for performing work that is otherwise included in the
Services and included in the Charges.
7.5 The Service Provider will not charge the Customer for time spent by
Service Provider Staff in remedying Service Provider errors.
8 NEW SERVICES
8.1 Subject to the provisions of the Agreement, in the event any New Services
are requested by the Customer, the Service Provider will either:
8.1.1 to the extent that the New Services, or any elements thereof, is one
priced in the Service Provider’s Tender Response and where such
prices were acceptable to the Customer, provide such New Services or
elements thereof for such charges; or
8.1.2 to the extent that the New Services or any elements thereof is not priced
in the Service Provider’s Tender Response proposal, quote to the
Customer a reasonable fixed or unit price for such New Services and the
Parties will promptly meet to discuss such quote. If the Parties do not
reach agreement after such a proposal, the Customer may elect in its
sole discretion to have the Service Provider perform the New Services,
and Service Provider will perform the New Services on a Time and
Materials Basis at the Personnel Rates.
9 TERMINATION/EXPIRATION ASSISTANCE
Subject to the provisions of the Agreement, the Service Provider may charge
for assistance required by the Customer to effect an orderly handover of the
Services (“Termination/Expiration Assistance”) to a Third Party service
provider prior to the effective date of termination or expiration, but only to the
extent it employs incremental resources to provide such assistance, with such
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resources being charged to the Customer on a Time and Materials Basis. The
Service Provider will use Commercially Reasonable Efforts to perform the
assistance without deploying incremental resources. The Service Provider will
obtain the Customer's written consent before deploying incremental resources.
10 EXTRAORDINARY EVENTS
10.1 In the case of an Extraordinary Event, the Service Provider’s Charges will,
subject to approval by the Customer, be equitably adjusted. An
‘Extraordinary Event’ will mean a governmental reorganisation, a change in
law, the addition, reduction, or other elimination of a significant line of
operations or other similar organisational change to the Customer, but in
each case only if: (a) the event results in a material increase or decrease in
the Customer’s volumes and such increase or decrease in volumes causes
the average monthly Charges payable by the Customer to increase or
decrease by at least 20% (twenty percent) when compared to the average
amount invoiced monthly during the prior 6 (six) months; and (b) such
increase or decrease is solely attributable to the event described in clause
(a); and (c) such increase or decrease continues or is likely to continue for
a period of 6 (six) or more consecutive months.
10.2 In addition, a material paradigm shift in the technology on which the
Services are based) due to disruptive innovation that (a) increases or
decreases the Service Provider’s costs by at least 20% (twenty percent)
per month, and (b) such increase or decrease is solely attributable to the
event described herein; and (c) such increase or decrease continues or is
likely to continue for a period of six or more consecutive months, will also
be considered an Extraordinary Event.
10.3 Upon the occurrence of an Extraordinary Event under this clause 10 of this
Annexe "B", the Service Provider will cooperate fully with the Customer in
determining the Service Provider’s costs prior to the event and in assessing
the impact of the event.
11 TERMINATION CHARGES
The Customer will under no circumstances be liable for termination charges
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pursuant to any termination or expiration of this Agreement.
12 CESSATION UPON PARTIAL TERMINATION OR REDUCTION IN REQUIREMENTS
If there is a termination of part of the Services in accordance with this
Agreement or if the Customer reduces its requirements for the Services, then
any Charges that relate to the Services that are no longer being performed will
immediately cease.
13 SERVICE LEVEL CREDITS
At the Customer's election, the Charges may be adjusted by the application of
Service Level Credits in accordance with Annexe “D” - Service Levels.
Draft Attachmate Software Maintenance & Support Services Agreement Page 10
Appendix B-1: Service Pricing Tables
1. Percentage of list license price for XXX] License Maintenance
2. Discount / Mark-up on list price for purchase of [XXX] Licenses
(indicate a discount by minus sign in front of the percentage
given)
3. Monthly Charge for Maintenance (Rand Only), for the Software
listed in Annexe “A”
4. Proportion of monthly fixed Charge for Maintenance (point 3.
above) affected by CPI
5. Proportion of Personnel rates (points a and 2B. above)
affected by CPI
Note to Bidder: this Appendix will be populated based on the pricing worksheets submitted in response to the RFQ]
Draft Attachmate Software Maintenance & Support Services Agreement Page 11
Appendix B-2: Personnel Rates and Skill Classifications
a. Personnel Rates for Support (during business hours) Per Hour Per Month Per Six Months
[XXX] Consultant
Senior [XXX] Consultant
Project Manager
2B. Personnel Rates for Support (outside business hours) Per Hour Per Month Per Six Months
[XXX] Consultant
Senior [XXX] Consultant
Project Manager
6.Proportion of Personnel rates (points 4a and 4b. above) affected by CPI[Note to Bidder: this Appendix will be populated based on the pricing worksheets submitted in response to the RFQ]
Draft Attachmate Software Maintenance & Support Services Agreement Page 12
Confidential
ANNEXE "C" – Attachmate Software Maintenance and Support
Services Schedule
Further to the provisions of the Agreement relating to the description of the Services,
this Annexe sets forth details of the Maintenance Services and Support Services
that the Service Provider will provide to the Customer.
1 SINGLE POINT OF CONTACT
The Service Provider will provide a single point of contact for all
communications between the Parties relating to the performance, receipt and
use of the Services (‘Contacts’) as described in this clause 1 of this Annexe
"C" (the ‘SPOC’). The SPOC will provide primary support for resolution of
Incidents, Problems or requests relating to the Services and will provide a
seamless interface for other communications or activities relating to the
Services. The SPOC will provide the Customer with second level support
relating to the Services through the SPOC. For clarity, the SPOC will not be
used as the primary interface to the Service Provider by the Customer end
users.
1.1 Contacts
1.1.1 The Service Provider will log all Contacts. Contacts may relate to known
or suspected Incidents or Problems, requests for Changes or New
Services, or any questions relating to the use of the Services.
1.1.2 The Service Provider will report to the Customer monthly on the number
and status of Contacts received. Contacts will be categorized as follows:
(i) Incidents or Problems relating to the Services; (ii) questions relating to
the Services; (iii) requests for standard Changes; (iv) requests for non-
standard Changes; (v) other issues or questions relating to the Services;
or (vi) issues or questions that do not relate to the Services ("Out of
Scope Contacts").
1.1.3 The SPOC will be able to receive Contacts by email; telephone and
SMS and from any person or persons nominated by Customer.
Draft Attachmate Software Maintenance & Support Services Agreement Page
1.1.4 With respect to Contacts that are received via telephone, the SPOC will
resolve as many such Contacts as possible during the initial Contact
without transferring or escalating the Contact.
1.2 Out of Scope Contacts
With respect to Contacts that do not relate to the Services, the Service
Provider will ensure that the person, who made the Contact on the
Customer’s behalf, is informed that the Contact is out of the scope of the
Services. No Charge will be levied by the Service Provider for the receipt
or notification of out of scope requests.
2 CONTACT LOGGING SYSTEM INTEGRATION
2.1 At the Customer’s election, Service Provider will develop and deploy
systems and provide software functionality (the ‘Integration Capability’) to
facilitate communication between the Customer’s "Remedy Incident
Management System" and the Service Provider’s "Contact and Incident
Tracking System".
2.2 The Integration Capability will allow (i) an Incident to be automatically
logged on the Service Provider’s Contact and Incident Tracking System
simultaneously with the logging of that Incident on the Customer’s Remedy
Incident Management System; and (ii) updates and status changes to the
Incident to be logged to both the Service Provider’s Contact and Incident
Tracking System and the Customer’s Remedy Incident Management
System. The integration may be implemented using web services.
2.3 The development, deployment and provision of the integration between the
Customer's Remedy Incident Management System and the Service
Provider’s Contact and Incident Tracking System will be performed at no
additional charge to the Customer.
2.4 The Integration Functionality will be made operational within 60 (sixty) days
of the Customer having given the Service Provider notice of its election to
have the Integration Functionality implemented.
2.5 The failure of the Integration Functionality will not excuse the Service
Draft Attachmate Software Maintenance & Support Services Agreement Page 2
Provider from the performance of its duties under this Agreement including
those duties and Service Levels specified in Annexe “D”.
3 RESOURCES
The Service Provider will ensure that Service Provider Staff members
providing SPOC functions will be trained in, or will otherwise be made
knowledgeable about, the Services and the Customer environment. The
Service Provider will provide sufficient numbers of Staff with the requisite
training to be able to address Customer’s specific issues and questions. The
Service Provider will develop and maintain a knowledge base to aid its Staff
providing SPOC functions.
4 HOURS OF SERVICE
The Service Provider will provide contact information so that the Service
Provider Staff providing SPOC functions can be accessed as follows:
i) Matters relating to Critical and High Incidents: 24x7; and
ii) Matters relating to Medium and Low Incidents: 7:00 to 17:00 on business
days.
5 INCIDENT MANAGEMENT SERVICES
As part of the Support Services, the Service Provider will perform the Services
described in this clause 5 of this Annexe "C" (the ‘Incident Management Services’). The Service Provider will perform the Incident Management
Services in accordance with the processes and procedures set forth herein or
as determined by the Customer from time to time.
5.1 Incident Management Procedures
5.1.1 Development of Procedures
Within 10 (ten) business days after the Effective Date, the Service
Provider will prepare for the Customer’s review and approval detailed
Incident Management Services processes and procedures (the ‘Incident
Management Procedures’). Service Provider will incorporate the
Draft Attachmate Software Maintenance & Support Services Agreement Page 3
Customer’s comments on such procedures and include such revised
procedures in the Customer PPS&G promptly but in no event later than
10 (ten) days after the Customer has provided its comments. The
Incident Management Procedures will be consistent with the processes
and procedures set forth in this clause 5.
The Service Provider will follow the Incident Management Procedures
from the date that they have been approved by the Customer. Before
such date, the Services Provider will follow the processes and
procedures regarding Incident Management that are set forth in this
clause 5, supplemented with Service Provider’s own standard processes
and procedures (to the extent they are not inconsistent with this clause
5).
5.1.2 Updates
The Service Provider will promptly update the Incident Management
Procedures to reflect any changes made by the Customer to the
Customers Incident management procedures. Service Provider will
submit the revised Incident Management Procedures to the Customer
for its review and approval in the same manner as set forth in clause
5.1.1 above.
5.2 Incident Recording
5.2.1 Recording Incidents
The Service Provider will record Incidents in the Service Provider’s
Incident tracking system immediately upon their earliest detection. The
manner in which an Incident may be detected include: (i) Contact as
detailed in clause 1.1 above; (ii) notification by Software suppliers; (iii)
notification by the Service Provider's other customers; (iv) on an Incident
being logged by the Customer on its own Remedy Incident Management
system in the event that integration has been implemented in terms of
clause 2 of this Annexe "C"; or (iv) from any other source.
5.2.2 Checking for the same or similar Incidents
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To avoid duplicating an Incident, the Service Provider shall investigate
and assess whether any similar open Incidents have been logged and/or
recorded. If similar open Incidents have been logged and/or recorded,
the Service Provider will update the Incident information and link the
newly reported Incident to the existing Incident record. Further, Incidents
similar to any new Incidents will also be noted and addressed (including
being made a part of the Incident Management reporting to the
Customer) by the Service Provider. The Service Provider will identify
and analyse the reasons for any differences in the effectiveness of the
resolution for similar Incidents.
5.2.3 Incident Tracking System
At all times during the Term of the Agreement, the Service Provider will
utilise an electronic Incident tracking system capable of capturing and
storing appropriate information relating to each Incident, including the
information specified in this clause 5, in such Incident tracking system.
In the event that integration has been implemented in terms of clause 2
of this Annexe "C", such integration functionality will be maintained by
the Service Provider.
5.3 Classification
All Incidents will be classified in accordance with the process set forth in
this clause 5.3 of Annexe "C". The Service Provider will comply with the
then-current Customer PPS&G relating to Incident Management and will
interface closely with the Customer so as to correctly identify and classify
Incidents.
5.3.1 Process
The Service Provider will classify an Incident in accordance with the
Customer’s then-current Impact and Urgency classifications per the
Customer PPS&G. The classifications which are applicable at the
Effective Date are set out in clause 12 of Annexe “C”. If there is a
disagreement between the Parties as to the priority level that should be
assigned to an Incident, the priority level will be determined by the
Draft Attachmate Software Maintenance & Support Services Agreement Page 5
Customer.
5.3.2 Re-categorisation of Recurring Incidents
The Service Provider will re-categorise recurring Incidents to a higher
Impact and Urgency classification in accordance with the Incident
Management Procedure.
5.3.3 Incident Record
The Service Provider will create and maintain an Incident record (trouble
ticket) for each Incident containing details of the Incident symptoms, an
initial Incident categorisation, and the impact of the Incident. The
Service Provider’s records of Incidents will be designed to enable the
Service Provider to measure and improve the affected processes,
provide information required for other Service management processes,
and report on progress.
In the event that the Customer elects to implement the Integration
Capability, the maintenance of the Incident record as specified in this
clause 5 will automatically and seamlessly update the corresponding
Incident record in the Customer’s Remedy Incident Management
System.
5.4 Communications
The Service Provider will keep the applicable Customer communication
interfaces (as specified in the Customer PPS&G) appraised of the status of
Incident Management Service activities on an ongoing basis in accordance
with the notification and escalation processes set forth in the Incident
Management Procedure. The Service Provider’s obligations in such regard
will include:
i) documenting and maintaining in the Incident Management
Procedures processes and procedures for notifying the Customer, of
Incidents, escalation paths, contacts and timescales;
ii) alerting the Customer of any Incidents in accordance with the Incident
Management Procedures;
Draft Attachmate Software Maintenance & Support Services Agreement Page 6
iii) informing the Customer Incident manager about the estimated
maximum time to resolve the Incident, and appraising him or her of
progress on an ongoing basis;
iv) at the Customer’s request, providing the Customer with a preliminary
report of the Incident on an expedited basis; and
v) notifying the Customer’s Incident Management Services team
promptly in accordance with the Incident Management Procedure in
the event that an Incident is likely to require a Problem investigation,
including informing the Customer Problem Management team.
5.5 Resolution and Recovery
The Service Provider will provide the necessary Incident Management
Services to resolve Incidents and return the affected Services to full
performance in accordance with this Agreement, including the Service
Levels, as soon as possible with the least possible impact on the
operations of the Customer and the affected users.
The Service Provider will provide the Customer with prior notice of any
temporary ‘work-around’ or permanent solution that:
i) may have a further impact on the Services or on the Customer;
ii) represents a departure from the Customer’s processes; or
iii) materially increases or is likely to materially increase the workload of
the Customer’s Staff or the Customer’s systems or the Customer’s
costs.
In addition to the Incident Management Procedures, the Service Provider
will follow the processes as determined by the Customer with regard to
Incidents classified as ‘Critical’ in terms of clause 12 of this Annexe “C”.
5.6 Completion and Closure of Incidents
Only the Customer will be entitled to close Incidents. The Customer may
use any means necessary to verify that the Incident has actually been
Draft Attachmate Software Maintenance & Support Services Agreement Page 7
resolved. If the Incident has not been resolved, the Service Provider will re-
commence Incident resolution and will resolve the Incident.
The Service Provider will participate in Incident post mortem and
improvement activities to prevent the re-occurrence of the Incident.
5.7 Incident Management Services Outputs
The outputs of Incident Management Services include the Service
Provider's provision of:
i) Incident Management Procedures; and
ii) Management information relating to Incident Management Services,
as requested by the Customer from time to time (e.g. status,
updates, efficiency and effectiveness, other management or
performance metrics).
6 PROBLEM MANAGEMENT SERVICES
As part of the Support Services, the Service Provider will perform the Problem
Management Services described in this clause 6 (the ‘Problem Management
Services’) and will do so in accordance with the processes and procedures set
forth or referred to herein or as determined by the Customer from time to time.
In performing the Problem Management Services, the Service Provider will
minimise the adverse effect of Problems on the Customer’s operations, the
Services and proactively minimise the impact and prevent the occurrence of
Problems.
6.1 Problem Management Procedures
6.1.1 Development
Within 10 (ten) business days after the Effective Date, the Service
Provider will prepare for the Customer’s review and approval detailed
Problem Management processes and procedures for the Services (the
‘Problem Management Procedures’). The Service Provider will
incorporate the Customer’s comments on such procedures and include
such revised procedures in the Customer PPS&G promptly but in no
Draft Attachmate Software Maintenance & Support Services Agreement Page 8
event later than 10 (ten) days after the Customer has provided such
comments. The Problem Management Procedures will be consistent
with the processes and procedures set forth in this clause 6.
The Service Provider will follow the Problem Management Procedures
from the date that they have been approved by the Customer. Before
such date, the Services Provider will follow the processes and
procedures regarding the Problem Management Services that are set
forth in this clause 6 supplemented with the Service Provider’s own
standard processes and procedures (to the extent they are not
inconsistent with this clause 6).
6.1.2 Updates
The Service Provider will promptly update the Problem Management
Procedures to reflect any changes made by the Customer to the
Customer’s Problem Management Procedures. The Service Provider
will submit the revised Problem Management Procedures to the
Customer for its review and approval in the same manner as set forth in
clause 6.1.1 of this Annexe "C".
6.2 Proactive Problem Management
The Service Provider will monitor all relevant sources of information
reporting known Problems and inform the Customer within 2 (two) business
days of publication of any known Problem that may affect the Services or
the Software in any way.
The Service Provider will use Commercially Reasonable Efforts to
proactively prevent Problems, including by means of performing trend
analysis and identifying potential Incidents and/or Problems before they
occur. The Service Provider will use Commercially Reasonable Efforts to
prevent failures from spreading. Service Provider will identify and
investigate weaknesses of infrastructure components.
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6.3 Problem Control
The Service Provider will be responsible for identifying Problems and
investigating their root cause in accordance with the terms of this clause
6.3 of Annexe "C" (‘Problem Control’). When the Problem investigation
has resulted in the identification of the root cause of a Problem and a
resolution to the Problem, the Problem will be classified as a "Known
Error". In performing Problem Control, Service Provider will perform the
following Services:
6.3.1 Problem Identification and Recording
The Service Provider will associate and record details of all Incidents
caused by one or more Problem(s) with such Problem(s), including
Incidents that recur or are expected to recur, as well as any single
significant Incident.
6.3.2 Problem Classification
The Service Provider will analyse Problems and classify them in
accordance with the Customer’s then-current Impact and Urgency
classifications. The Customer's impact and urgency classifications which
are applicable at the Effective Date are set forth in clause 12 of this
Annexe “C”. The analysis will include an impact analysis assessing the
seriousness of the Problem and its effect on the Services. The Service
Provider will confer with the Customer in formulating these
classifications and categorisations. If there is a disagreement as to the
priority level that should be assigned to a Problem, the priority level will
be that prescribed by the Customer. Factors to be considered in
determining the classification of a Problem will include:
i) Category - identifying the relevant domain, for example hardware or
software (including Software);
ii) Impact - on the Customer's business;
iii) Urgency - extent to which deferral of the solution is acceptable;
Draft Attachmate Software Maintenance & Support Services Agreement Page 10
iv) Priority; and
v) Status - e.g., Problem, Known Error, resolved, closed pending post
implementation review.
These classifications and categorisations will be updated to reflect any
changes during the resolution of the Problem. For example, new
Incidents may increase the Impact and Urgency, and accordingly
Priority, of a Problem.
6.3.3 Problem Investigation and Resolution
i) The Service Provider will investigate and diagnose each Problem
to achieve resolution.
(ii) The Service Provider will perform the Error Control activities
described below in clause 6.4 of this Annexe "C".
(iii) If a temporary fix requires modification of infrastructure, the
Service Provider will implement it with the Customer in
accordance with the Customer’s PPS&G.
(iv) Service Provider will comply with and interface with the
Customer’s PPS&G processes.
(v) Service Provider will correctly identify Problems and investigate
and monitor the Problem(s) to resolution.
(vi) Service Provider will participate in formal root cause analysis to
identify the origin of each Problem that (i) resulted from a High
Impact Incident; or (ii) results in repeat Incidents.
(vii) Once the Service Provider has identified the root cause of a
Problem and a method of resolving it, such Problem will be
classified as a Known Error. The Service Provider will record all
Known Errors against the current and potentially affected
Services in addition to the element at fault and any workarounds.
A Known Error will not be closed until it has been resolved.
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(viii) The Service Provider will use Commercially Reasonable Efforts
to eliminate the root cause of each of the types of Problems
specified in clause 6.3.3 of this Annexe "C" and prevent
recurrence of such Problem, including by means of performing a
detailed review of each such Problem.
(ix) The Service Provider will facilitate Problem Management
Service investigations and review of Problems, including
identifying Problem trends.
(x) The Service Provider will adhere to the mutually agreed
Problem escalation path for each Problem severity group.
(xi) The Service Provider will report to the Customer during the
normal reporting cycle the results of any root causes analyses
conducted with respect to Problems that were not the result of a
High Impact Incident.
(xii) The Service Provider will conduct all root cause analyses in
accordance with the applicable procedures set forth in the
Customer's PPS&G.
(xiii) With respect to each Problem that:
gave rise to a Service Level Failure, or
results from a High Impact Incident,
the Service Provider will provide the Customer with: (1) a plan
for correcting such Problem and preventing its recurrence; (2)
reasonable evidence that the Problem has been corrected and
will not recur, and (3) a detailed explanation of Service
Provider’s contingency plan.
6.4 Error Control
The Service Provider will monitor and manage Known Errors until they are
successfully resolved (‘Error Control’). The Service Provider will perform
Error Control in accordance with the Operational Change Management
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Procedures and evaluate the changes in a Post-Implementation Review, as
described in Clause 6.5 of this Annexe "C". The Service Provider will
monitor and report on all Known Errors from their identification through to
their resolution.
6.5 Problem Closure and Post-Implementation Review (“PIR”)
When Problems are resolved, Service Provider will record Problems and
Known Errors as resolved. Only the Customer will close Problems. Once
implemented, all Changes to resolve Problems and Known Errors will be
reviewed in a PIR. The Customer will not close the Problem until (i) the
PIR has been completed, (ii) any other steps mandated by the Customer
have been completed, and (iii) the Parties agree (acting reasonably) that
the Change(s) was (were) implemented in such a fashion so as to resolve
the Problem or Known Error. In such case, all related Problem and Known
Error records, together with their associated Incident records, will be closed
by the Customer. For Problems designated as major by the Customer, a
separate Problem review will promptly be undertaken jointly by Service
Provider and the Customer to identify:
i) what aspects of the Problem Management Services were/were not
performed well;
ii) how the performance of the Problem Management Services can be
improved; and
iii) recommendations for the Service Provider to prevent a recurrence of
the Problem.
6.6 Communications
The Service Provider will keep the Customer communication interfaces
appraised of the status of Problem Management Service activities in
accordance with the Problem Management Procedure notification and
escalation processes. The Service Provider’s obligations will include:
i) alerting the Customer of any Problems in accordance with the Service
Levels; and
Draft Attachmate Software Maintenance & Support Services Agreement Page 13
ii) at the Customer’s request, providing a preliminary report of the
Problem on an expedited basis to the Customer.
6.7 Problem Management Services Outputs
The outputs of Problem Management Services include the provision by the
Service Provider of:
i) Problem Management Procedures;
ii) a Known Error database, which is a subset of the Problem
Management Services system;
iii) up-to-date Problem records (updated with information about status,
Known Errors, solutions and/or workarounds);
iv) closed Problem records (once the root cause has been eliminated
and the Problem resolved);
v) matches of Incidents to Problems and Known Errors;
vi) Problem reports indicating history and status of Problems,
categorised by type, time period, and status as reasonably requested
by the Customer from time to time; and
vii) management information relating to Problem Management Services
as requested by the Customer from time to time (e.g., status,
updates, efficiency and effectiveness, other management or
performance metrics).
7 CONSULTING SERVICES
7.1 Consulting Services
The Service Provider will provide to the Customer consulting Services as
reasonably requested by the Customer in accordance with this clause 7 (the
‘Consulting Services’). Unless the Consulting Service requested by the
Customer falls within the scope of one or more of clauses 7.1.1 to 7.1.6
below, all Consulting Services will be provided by the Service Provider on a
Time and Materials Basis or, if the Parties agree, on a fixed price basis.
Draft Attachmate Software Maintenance & Support Services Agreement Page 14
The nature of Consulting Services will be reasonably related to the Software
and the implementation thereof.
Consulting Services listed in clauses 7.1.1 to 7.1.6 are Services that the
Service Provider will provide to the Customer at no charge:
7.1.1 Future Technology Delivery
The Service Provider will proactively identify strategies and approaches
for future technology delivery related to the Software. The Service
Provider will assist the Customer in setting the Customer’s technology
direction and strategy. The Service Provider will assist the Customer in
aligning the Customer’s technical Software architecture with its business
and technical strategies.
7.1.2 Management of Technology Offerings
The Service Provider will advise the Customer in the management and
representation of the Software and related service offerings to the
Customer’s internal clients.
7.1.3 Identification of Product and Enhancement Opportunities
The Service Provider will identify product and enhancement
opportunities for improved performance, and notify the Customer of such
opportunities or on request make a presentation of such opportunities to
the Customer.
7.1.4 Maintaining Industry Knowledge
The Service Provider will maintain applicable levels of industry
knowledge of the Customer’s operations.
7.1.5 Participating in Forums
The Service Provider will maintain applicable levels of participation and
input into forums and conferences, user groups, trade associations, and
similar organisations; supporting the development of a clear, concise,
strategic direction for the Services.
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7.1.6 Assist in making decisions
The Service Provider will ensure that the standards and architecture
decisions (including a change in means of transport) with respect to the
Services will be compatible with the Customer’s requirements and will be
subject to the Customer approval in its sole discretion.
8 MAINTENANCE AND SUPPORT SERVICES
8.1 General Obligations
The Service Provider will provide Maintenance Services and Support
Services for the Software.
The Service Provider’s obligations with regard to Maintenance and Support
will include the services as are set out in this clause 8 of Annexe "C".
8.2 Maintenance
The Service Provider will provide Maintenance Services in accordance with
the provisions of the Agreement (and the relevant manufacturer’s
instructions or as otherwise mutually agreed in writing) for the Software on
an ongoing basis to minimise disruption to the Customer’s business, the
Services and the end users (‘Preventive Maintenance’). The Service
Provider’s Preventative Maintenance obligations will include:
8.2.1 performing routine maintenance (in accordance with manufacturer
instructions); remote and/or on-site inspections (including predictive fault
investigation testing and diagnosis) and repair services;
8.2.2 unless directed otherwise by the Customer, implementing corrections
and solutions in relation to the activities set out in the previous
paragraph so that the Software will, on an ongoing basis:
(i) operate in accordance with the manufacturer’s specifications; and
(ii) perform in accordance with this Agreement;
8.2.3 maintaining and updating maintenance and repair records relating to the
Software and conducting trend analysis and predictive Incident
Draft Attachmate Software Maintenance & Support Services Agreement Page 16
Management Services and Problem Management Services;
8.2.4 maintaining active subscription to user/developer/engineering
information services that are made available by the manufacturer of the
Software;
8.2.5 informing the Customer within the timeframes specified in Annexe “D” (Service Levels) of any notices that are communicated in the
subscriptions in clause 8.2.4 of this Annexe "C" that may affect the
Customer operation of the Software; and
8.2.6 at the Customer’s request, where an item of Software is going out of
manufacturer support, ensuring that such Software is replaced or
upgraded before the support period has expired in accordance with the
Customer PPS&G.
9 SUPPORT
9.1 The Service Provider will provide services to resolve Incidents and
Problems in accordance with the procedures developed and agreed for
Incidents and as defined in clause 5 of this Annexe “C” and for Problems
as defined in clause 6 of this Annexe ”C”:
9.2 The Support Services include the provision of telephonic or onsite
assistance as determined by the Customer and as determined by the
classification of the Incident or Problem.
10 OTHER SERVICES
10.1 General Support
10.1.1 The Customer may from time to time request, and the Service Provider
will provide, general services that include the development of
customisations and general assistance relating to the Software but that
fall outside the scope of the Maintenance Services and Support
Services. Such general support will be provided on a Time and
Materials Basis and will be charged in accordance with the Appendix B-2
(Personnel Rates).
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11 TRAINING
11.1 Provision
The Service Provider will, on receipt of an official Customer purchase order,
provide or facilitate training related to the Software. The Customer accepts
that the ability of the Service Provider to provide the training services may
be limited by seat availability or the schedule of the offered courses.
11.2 Training courses
11.2.1 The Customer may order and the Service Provider will provide any
Software related training course that is (a) commercially available as a
classroom course in the Republic of South Africa; or (b) available as
web-delivered content on the Internet.
11.2.2 In the event that the Service Provider cannot itself provide the training
requested by Customer, the Service Provider will facilitate the provision
of the training from a Third Party service provider. The facilitation of
training will include: making reservations; performing any administrative
task as necessary to ensure the training will be provided, making deposit
payments to the Third Party service provider (if any); making final
payments to the Third Party service provider (if any). In the event
training is facilitated by Service Provider from a Third Party service
provider, the charges for such facilitation will be made on a Pass
Through Expense Basis.
11.2.3 To the extent that the Service Provider does not itself provide a course,
the Service Provider can, subject to approval by the Customer, procure
the provision of the training Services from a Third Party service provider
on a Pass Through Expense Basis.
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Confidential
12 CATEGORISATION OF PRIORITIES
The Customer impact and urgency classifications as of the Effective Date are
set out in the table in this clause 12 of Annexe "C".
Critical High Medium Low
Effect Extensive /
Widespread
Significant /
Large
Moderate / Limited Minor /
Localised
Impact Major
Service
disruption
affecting a
large
number of
customers
or
departments
Critical
Customer
business
commitment
s cannot be
met.
System or
application is
usable, however
with severe
restrictions.
Performance is
severely
degraded.
Customer
business
commitment
may be delayed.
Incident affecting
one or more
customers.
Performance levels
are within
acceptable limits.
Customer business
commitment can
still be met,
however a
resolution is
required.
Incident that
does not
directly affect
the
Customer's
business or
productivity
Workaround
is available
Urgency Immediate
resolution
required.
Resolution
required within 2
(two) days.
Resolution required
within 5 (five) days.
Resolution
required
within 20
(twenty)
days.
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Confidential
13 ESCALATION
The Service Provider will escalate matters in the following order of priority,
starting with number one below –
No. Designation Name Telephone Cell phone email
1.
2.
3.
The Customer will escalate matters in the following order of priority, starting
with number one below –
No. Designation Name Telephone Cell phone email
1.
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[Note to Bidder: this will be completed after award, if an award is made]
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ANNEXE "D" – Service Levels
1 GENERAL
1.1 Annexe “D” sets out the Service Levels that will apply during the Term and
the method for calculating any Service Level Credits that may apply if
Service Provider fails to perform the Services in accordance with such
Service Levels.
1.2 Appendix D-1 sets out the Service Levels and Service Level Credits.
1.3 The measurements and Service Levels set forth in this Annexe “D” and its
Appendices will be used to measure Service Provider's performance of the
Services. During the Term, new Service Levels may be added or
substituted by written agreement between the Parties in order to achieve a
fair, accurate, and consistent measurement of the Service Provider's
performance of the Services.
1.4 Service Provider will monitor its performance of the Services with respect to
the Service Levels on a continuous basis.
1.5 Service Provider will measure and report on its performance of the Services
with respect to the Service Levels as set out in this Annexe “D”.
1.6 In the event of a dispute arising regarding the accuracy of the Service Level
reports produced by the Service Provider, reports produced by the
Customer from its Incident Management System will be regarded as correct
unless Service Provider can prove to the contrary.
2 SERVICE LEVELS
2.1 The Service Provider will perform the Services in accordance with the
Service Levels from the Effective Date.
2.2 From the Effective Date, the Service Provider will perform the services that
were performed by or provided to the Customer prior to the Effective Date,
and which correspond to the Services, in accordance with this Annexe “D”
2
and with at least the same degree of accuracy, completeness, efficiency,
quality, responsiveness and timeliness as was provided prior to the
Effective Date unless otherwise specifically provided for in this Agreement.
Moreover, Service Provider will perform the Services promptly, using
reasonable skill and care and in a professional and workmanlike manner.
Finally, Service Provider will perform the Services in accordance with any
other Service Levels specified in the Agreement.
3 CHANGES IN SERVICE LEVELS
3.1 The Service Levels will change annually on the anniversary of the Effective
Date, the Customer and the Service Provider will review the Service Levels
and will make adjustments to them as appropriate to reflect improved
performance capabilities associated with advances in the technology and
methods used to perform the Services. The Parties expect and understand
that the Service Levels will be improved over time.
4 STATUS OF SERVICE LEVEL CREDITS
4.1 The following will apply in respect of Service Level Credits:
4.1.1 The Service Level Credits are a price adjustment for the relevant period
to reflect the reduced level of Service performed by Service Provider and
are not an estimate of the loss or damage that may be suffered by the
Customer as a result of the Service Level Failure.
4.1.2 The payment of a Service Level Credit by the Service Provider is at
Customer's election and is without prejudice to, and will not limit, any
right the Customer may have to terminate this Agreement and/or seek
damages or other non-monetary remedies at law or in equity resulting
from, or otherwise arising in respect of, such Service Level Failure and
any resulting termination.
4.1.3 Notwithstanding the provisions of clauses 4.1.1 and 4.1.2 of this Annexe
"D", any claim for damages resulting from such Service Level Failure, in
respect of which a Service Level Credit has already been paid, will be
reduced by the amount of that Service Level Credit.
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5 PERFORMANCE AGAINST SERVICE LEVELS
5.1 Measurement: Except as otherwise set out in the description of the
individual Service Level, Service Provider’s performance with respect to the
Service Levels will:
5.1.1 commence being measured by Service Provider on the Effective Date;
and
5.1.2 be measured against Service Provider’s actual performance of the
Services against the Service Levels and not merely against a sampling
of its performance of such Services.
5.2 Except as otherwise specifically provided herein, Service Provider will be
responsible for monitoring, measuring and reporting on performance as
required to apply the Service Levels, including the provision, installation
and support of any automated tools for this purpose.
5.3 The Customer will have the right to perform an audit on the tools described
above in Clause 5.2 of Annexe "D".
5.4 The Service Level measurement system implemented by Service Provider
will be documented. The documentation will be available for inspection by
the Customer and will include the following information regarding a Service
Level Failure:
5.4.1 the nature of the Service Level Failure;
5.4.2 the specific Service or Services that are impacted;
5.4.3 the start time and date of all Service Level Failures;
5.4.4 the time at and date on which Service is fully restored;
5.4.5 the root cause of the Incident or other event that gave rise to the Service
Level Failure;
5.4.6 the impact of the Service Level Failure on other components of the
Services and associated trend analyses; and
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5.4.7 a summary of the steps Service Provider has taken to determine the root
cause of the Service Level Failure, the steps Service Provider has taken
to restore Service, and the steps Service Provider has taken to reduce,
to the extent reasonably possible, the likelihood that such Service Level
Failure will be repeated.
6 ACTIONS ON FAILURES
6.1 In respect of any Service Level Failure, the Service Provider will:
6.1.1 investigate, assemble, and preserve pertinent information with respect
to, and report on the causes of, the Incident, including performing an
appropriate root cause analysis of each Incident which led to the Service
Level Failure;
6.1.2 propose and execute a written corrective action plan;
6.1.3 advise the Customer of the status of remedial efforts being undertaken
with respect to such Incident. In this respect, Service Provider will track
the status of such remedial efforts and make available such progress
information to the Customer through an electronic on-line tool;
6.1.4 minimise the impact of the Incident, correct it, and resume meeting the
Service Level as soon as possible once it is corrected;
6.1.5 take the necessary Commercially Reasonable Efforts to employ
preventive measures so that the Incident does not recur, including
allocating additional Staff and resources to the performance of the
Services and proposing changes to the procedures it uses to perform
the Services; and
6.1.6 Service Provider will, on a monthly basis, perform trend analysis on the
Service Level performance data. If Service Provider or the Customer
identifies a trend in Service Level performance which reasonably
indicates a meaningful risk of failure to meet a Service Level in future,
then Service Provider will perform a root cause analysis with respect to
the trend, report to the Customer on its findings and use Commercially
Reasonable Efforts (as approved by the Customer) to prevent the
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Service Level Failure from actually occurring.
7 REPORTING
7.1 Service Provider will issue a report (the ‘Service Level Report’) after the
end of each month during the Term of the Agreement, containing the
quantified performance of the Service Provider for the month with respect
to all the Service Levels as defined in this Annexe “D”. The Service Level
Report must be presented to the Customer on or before the 10 th (tenth)
business day after the end of the month being reported upon.
7.2 As part of the monthly Service Level Report required pursuant to clause 7.1
of this Annexe "D", Service Provider will provide the Customer with a soft-
copy report on Service Provider's performance against the Service Levels.
Detailed supporting information for each Report will be provided to the
Customer in soft-copy as reasonably requested by the Customer.
8 ENTITLEMENT TO SERVICE LEVEL CREDITS
8.1 In no event will the total, aggregate amount of Service Credits payable by
Service Provider for a calendar month exceed [XXX] (XXX percent) of the
amounts invoiced to the Customer by Service Provider for such month (the
‘At Risk Amount’), provided however that Pass Through Expenses and
Software purchase charges invoiced in any particular month will not count
in calculating such At Risk Amount.
8.2 For each Service Level Failure occurring during the Term, the Charges for
the month following the month in which the Service Level Failure occurred
may, at the Customer's election, be reduced by the Service Level Credits
calculated in accordance with Clause 9 of this Annexe "D".
8.3 If a single triggering event directly causes 2 (two) or more Service Level
Failures in any month; and but for such event, none of such Service Level
Failures would have occurred, then the Customer will be entitled to receive
only a single Service Level Credit (selected by the Customer) and Service
Level Credits will not apply to such other Service Level Failures.
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9 CALCULATION OF SERVICE LEVEL CREDITS
9.1 For each of the following Service Levels (in respect of which Service Level
Credits are determined on a per-event or per-occurrence basis):
9.1.1 Appendix D-1 Clause 2;
9.1.2 Appendix D-1 Clause 2.2;
9.1.3 Appendix D-1 Clause 4; and
9.1.4 Appendix D-1 Clause 5;
the applicable Service Level Credit payable by Service Provider to the
Customer is contained in the definition of the Service Level itself.
9.2 Service Level Credits will be applied against the first monthly invoice
following the month in which the Service Level Failure(s) occurred. Service
Level Credits arising in respect of the last month of the term of the
Agreement will be withheld out of the final payment due.
10 EXCUSED PERFORMANCE
10.1 Where Service Provider can establish to the satisfaction of the Customer
that:
10.1.1 the cause of its failure to achieve a Service Level was a factor or factors
outside of the reasonable control of Service Provider;
10.1.2 Service Provider would have achieved such Service Level but for such
factor(s);
10.1.3 Service Provider used Commercially Reasonable Efforts to perform and
achieve that Service Level notwithstanding the presence and impact of
such factor(s); and
10.1.4 Service Provider is without fault in causing such factor(s);
10.2 No Service Level Credit will be assessed against Service Provider for any
resulting Service Level Failure and Service Provider will otherwise be
excused from achieving such Service Level for as long as the
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circumstances relating to such factor(s) and preventing achievement of
such Service Level prevail and Service Provider continues to use its
Commercially Reasonable Efforts to prevent, overcome and mitigate the
adverse effects of such factor to the extent required to achieve the
applicable Service Level.
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Appendix D-1: Service Levels and Service Level Credits
1 GENERALThis Appendix D-1 sets out each Service Level and the calculations;
definitions; targets; and Service Level Credit amounts for each.
2 MANUFACTURER NOTIFICATION SERVICE LEVEL
2.1 GeneralThe Manufacturer Notification Service Level measures the number of times
during the month that a notice from Licensor related to the Software is
received by Customer from Service Provider later than 2 (two) business
days after the release of the information by Licensor to Service Provider.
2.2 Service Level CreditFor each failure to convey the Licensor notification to the Customer within 2
(two) business days, Service Provider will pay the Customer a Service
Level Credit in an amount equal to R _______ (_______ Rand)
3 CONTACT RESPONSE SERVICE LEVEL
3.1 GeneralThe Contact Response Service Level measures the number of times the
time taken by the Service Provider to respond to a contact made by the
Customer is in excess of the times in the table (‘Contact Response Times’)
below.
Contact Response Times
Contact Priority TimeCritical or High Within 1 (one) hour
Medium or Low Within 2 (two) business hours
3.2 Service Level CreditFor each failure to respond to the contacts within the times specified above,
Service Provider will pay the Customer a Service Level Credit in an amount
equal to R _____ (____________ Rand).
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4 ONSITE PRESENCE SERVICE LEVEL
4.1 General
The Onsite Presence Service Level measures the number of times the time
taken by the Service Provider to achieve an onsite presence in response to
a contact made by the Customer is in excess of the times in the table
(‘Onsite Presence Times’) below.
Onsite Presence Times
Contact Priority TimeCritical or High Within 90 (ninety) minutes
4.2 Service Level Credit
For each failure to achieve an onsite presence in response to a Customer
Contact within the time specified above, Service Provider will pay the
Customer a Service Level Credit in an amount equal to R________
(___________ Rand).
5 TIME TO RESOLVE INCIDENTS SERVICE LEVEL
5.1 GeneralThe Time to Resolve Incidents Service Level measures the number of
times the time taken by the Service Provider to restore Service is in excess
of the times specified in the table (‘Time to resolve Incident Times’) below.
Time to Resolve Incident Times
Contact Priority TimeCritical Less than 4 (four) business hoursHigh Less than 8 (eight) business hoursMedium Less than 5 (five) business days
5.2 Service Level CreditFor each failure to resolve an Incident in accordance with the time periods
specified above, Service Provider will pay the Customer a Service Level
Credit in an amount equal to R________ (___________ Rand).
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ANNEXE "E" – DOCUMENTATION
To be updated from time to time.
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