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SERVICE LEVEL AGREEMENT
1. The Purchaser has purchased ERS SmartScan Time & Attendance and/or Access control devices from the Seller, both parties would like to record the level of service that
the Seller will provide to the Purchaser for the duration of this agreement. The latest updated version of this SLA will be available on the Website and the Purchaser
accept the Term and Conditions every time he/she log onto the Website
2. DEFINITIONS
In this Agreement unless the context indicates otherwise "
"Agreement" means this Agreement, the Clauses and the Sub-Clauses hereof including the Annexes;
"Applicable Law" means, in relation to any jurisdiction, any law, regulation, regulatory requirement, judgement, order or directive, or any other act of any Government Entity of such jurisdiction which the Seller or the Purchaser is required to comply;
"Equipment" means the new ERS SmartScan devices used for Time and Attendance and/or Access Control , purchased from the Seller by the Purchaser;
"Excusable Delay" " means delay or non-performance by either Party of any of its obligations in terms of this Agreement, where such delay is as the result of any cause or matter beyond the reasonable control of the affected Party, including, without in any way limiting or derogating from the aforegoing, the following :-
1. Acts of God;
2. War or armed hostilities, terrorism, insurrection or riot;
3. Government acts or priorities;
4. Fires, floods, inclement weather or earthquakes;
5. Strike or labour disputes causing cessation, slowdown or interruption of work; or
6. Inability, after due and timely diligence, to provide equipment, materials, systems, accessories or Parts;
"Governing Law" means the laws of the Republic of South Africa;
"Insurances" means any insurance and reinsurance required to be effected and maintained by the Seller during the Maintenance Period during the Maintenance Period;
"Installation Date" means the date on which the installation of the Equipment, at the Premises, is completed and accepted by the Purchaser.
"Party" dependant on the context in which the term is used means either the Seller or the Purchaser;
"Parties" means the Seller and the Purchaser collectively;
"Premises" means the site of the Purchaser where the equipment was installed. There could be multiple sites.
"Maintenance Period" means the period for which the Seller has an obligation to maintain and Service the Equipment starting from the date of installation;
"Manufacturer Warrantee" means the warrantee furnished by the manufacturer of the Equipment in terms of which the Seller undertakes to repair and or replace the Equipment due to a technical malfunction arising out of any installation, repair, design or manufacturing defect in the Equipment which is not attributable to any negligent or deliberate act or omission on behalf of the Purchaser or it's servants which occurs within the Maintenance Period of the Equipment;
"Parts" means all modules, appliances, components, parts instruments, appurtenances, accessories and other items of equipment of whatever nature as may be incorporated or installed in or attached to the Equipment and includes any substitute or replacement Parts that may be installed on the Equipment by the Seller.
"Swap Out" means the swapping or exchange of the Equipment by the Seller, with new replacement Equipment of the same type and model, or used Equipment of the same type and model and of similar age and condition to the Equipment being swapped, during the Maintenance Period, when the Equipment becomes inoperable due to damage or technical failure.
"Service" means the servicing, maintenance, repair, replacement and upgrading of the Equipment and the hosting, maintenance and upgrading of the Purchaser's BegetBio website;
3. WARRANTIES
3.1 The Seller warrants to the Purchaser that:
3.1.1 The Seller is duly incorporated, validly existing and in good standing under the laws of the Republic of South Africa and has the power to carry on it's business, as currently conducted and to own its property and other assets;
3.1.2 The Seller has all the necessary corporate approval to execute, deliver and perform it's obligations under this Agreement;
3.1.3 The Seller warrants that should it Swap Out the Equipment or any portion thereof, that the Manufacturer Warrantee, and Seller's Service obligations and/or any obligations of the Seller attaching to the Equipment pursuant to this Agreement, shall automatically transfer from the Equipment installed to the Swapped Out equipment, as if the Equipment had not been swapped;
3.1.4 The Seller warrants that the Equipment delivered to the Purchaser is in a "new from manufacturer condition" with full Manufacturer Warrantee and that it is suitable for the purposes for which the Purchaser requires it. Should the Purchaser, after installation and commissioning of the Equipment, notice any defect and/or problem with the Equipment in that the Equipment does not function as per the Seller's specifications, the Purchaser shall notify the Seller of such defect and/or problem by no later than 3 days following the installation of the Equipment, whereupon the Seller shall either Swap Out the defective Equipment and/or repair the defective Equipment, within 3 business days of receiving telephonic notification from the Seller. After remedy by the Seller of any defect and/or damage and/or problem and the Seller demonstrating the correct function of the Equipment, the Purchaser shall be deemed to have accepted the Equipment as complete and in good order and in repair;
3.1.5 The Seller shall supply complete back up support for the Equipment;
3.1.6 The Seller shall only utilize replacement Parts on the Equipment that are in strict accordance with the Manufacturer's specifications;
;
3.1.7 All warrantees provided by the Seller in terms of this Agreement are "Swap Out" warrantees;
3.2 The Purchaser warrants to the Seller that-
3.2.1 The Purchaser shall at all times ensure that the Equipment is used in a manner and for the purpose for which it is designed and shall not make any alteration or modification to the Equipment during the period of the Manufacturer Warrantee and or the Seller's warranty period;
3.2.2 With effect from the Installation Date, the Purchaser undertakes to protect the Equipment and take special care to ensure that the fingerprint scanner is cleaned regularly in accordance with the manufacturer's specifications;
3.2.3 Will ensure that the Access Codes used to access the website are secured and will change these Codes from time to time to prevent unauthorized access to the Purchasers information. The Purchaser accepts full responsibility for the security and access to his information with Code numbers authorized and issued by the Purchaser;
3.2.4 Will allow the Seller access to the premises to perform any of it's obligations under this agreement without any restraint restrictions that may jeopardize the Seller's performance;
3.2.5 Monitor the quality of each employee's finger scanning recognition value and when required re-scan the employees finger to ensure the smooth operation of the Equipment.
3.2.6 Ensure that the Equipment is at all times:
3.2.6.1 Plugged into a proper main power supply that supplies power on a permanent basis to the Equipment;
3.2.6.2 The finger scanner is kept clean daily with a soft damp cloth. No solvents or soap may be used to clean the scanner;
3.2.6.3 All power cables maintained in a neat and proper manner.
3.2.7 Ensure that the Configuration as well as the Enrollment passwords are protected and kept in a safe place;
3.2.8 Will do the necessary to enforce the usage of the system and will train each employee on how to place his finger correctly on the scanner
4. DAMAGE OF EQUIPMENT
If the Equipment is damaged by the Purchaser or any other third party person during the Maintenance Period, the Purchaser shall telephonically notify the Seller within 2 business days of such damage taking place. After inspecting the damage to the Equipment, the Seller's maintenance engineer will decide whether the Equipment will be repaired on site or whether the Equipment will be Swapped Out
The Purchaser shall be responsible to pay for the costs of the Parts necessary to repair or replace the Equipment as well as labour and traveling costs of the Seller, in the event of malicious damage.
5. MAINTENANCE PERIOD
The Seller shall, with effect from the Installation Date, render the following Services for a period equal to the period that the Purchaser pays his monthly rental and/or support charges
This maintenance period is limited to a maximum of 48 (Forty Eight) months after the Equipment has been installed and commissioned at the Premises.
It is expressly stipulated that the Seller will suspend all Support and Maintenance if the Purchaser is in arrears with any of his payments
It is expressly stipulated that the Seller will suspend all Support, Maintenance and Website Access if the Purchaser is in arrears with any of his payments. Any amount outstanding on the Purchaser's account for billable services rendered that remains unpaid for a period exceeding 7 days will activate this suspension of services
The following service is included:
5.1 The hosting, maintenance and upgrading of the Purchaser's website;
5.2 The storage and maintenance of appropriate backups of the Purchaser's data.
5.3 Provide all costs related to GPRS, including SIM card and hoisting costs
5.4 The Seller shall supply the Purchaser with the comprehensive Support Service during normal business days from 08h00 Mondays to 16h00 Fridays:
5.4.1 Telephonically support on the telephone number 011 234 7468
5.4.2 WEB support when selecting the option on the web application
5.4.3 Swap out and repair of any defective devices
5.5 Maintaining all Alert services
5.6 Exporting of all data
6. PROCEDURE FOR TELEPHONIC SUPPORT
The Purchaser shall, whenever telephonic support is required, follow the procedure as set out below:
6.1 The Purchaser will notify the Seller, at the telephone/cell numbers specified in above, that a problem exists and furnish full details of the problem. The Purchaser shall provide such telephonic information as may be required by the Seller to render the support service.
6.2 The Seller shall immediately endeavor to resolve the problem telephonically, rectify or recover any corrupt data arising from any reason other than the Purchaser's own negligence. Should the Seller's personnel not be able to resolve the problem immediately, the Seller shall give an estimate of how long the problem may take to resolve.
6.3 The Purchaser shall perform all tasks that the Seller's suggests do to pin-point the problem and to assist to resolve the problem as far as possible for the Purchaser. This includes the following manual tasks:
6.3.1 Reset the unit by unplugging from mains or any other re-set instruction the Seller may give the Purchaser;
6.4 Each call will be logged by the Seller and a unique support reference number will be allocated to the Purchaser. Any further reference to this support call must always refer to this support number;
6.5 The Seller must attempt to resolve the support call telephonically within 4 hours after the call was logged but within normal office hours;
6.6 If not resolved in the time as specified above the Seller's support manager will take over the support call and will take the following steps;
6.6.1 Escalate the support call to level two by;
6.6.1.1 Arrange for a site visit by a suitable technician within 3 working days
6.6.1.2 Notifying the Purchaser within 1 hour of this escalation and informing the Purchasers of the action that will be taken and the timeframe within what it will be corrected;
6.7 If the Seller continuously receives user related support calls and determines that the Purchaser has new untrained staff the Purchaser will be obliged to book a training course and train the new staff and pay all related costs
7. EXCEPTIONS
This Agreement does not cover the cost of, or services, or support in respect of:
7.1 Hardware damaged as a result of an excusable event, catastrophe, accident, neglect, misuse, or negligence by the Purchaser or external causes like, but not limited to, faulty electric power supply, power failures or high tension cables running too close to communication cables;
7.2 GPRS failure in any way as supplied by the GSM networks;
7.3 Equipment failure due to equipment that was not supplied by the Seller;
7.4 Failure of any Access equipment or electronic locksets as well as power supply and battery back-ups of these Access equipment;
7.5 The Seller shall never be responsible for any consequential damage or loss from Equipment and/or system failure.
The Purchaser acknowledges that he understands the under mentioned exception
7.6 On average up to 3% of all fingerprints is not measurable and can not be identified due to a skill defect. These employees will have to be scanned on a regular basis and may even have to be identified differently
8. TRAINING
After installation and commissioning the Seller shall be responsible for;
8.1 Training the responsible persons on all functionality of the equipment and software as set out in the quotation;
8.2 Operational manuals will be supplied in electronically formant for management to use at any time;
8.3 Thereafter, any additional, new or existing staff of the Purchaser will receive the appropriate training charged at a nominal training fee.
9. INSURANCE
All hardware must be insured by the Purchaser for the full duration of the Maintenance Period. If the Equipment, or any Part is lost, stolen or damaged, in the
normal cause of operation or by accident, the Purchaser shall within 2 business days, notify the Seller in writing thereof. The Purchaser must submit a claim to
their Insurance company as well as request replacement stock to be issued. An invoice will be made out for the full replacement amount which will have to
be settled with 30 days of invoice.
10. GENERAL
10.1 No variation of this Agreement shall be of any effect unless recorded in writing and signed by or on behalf of all the Parties.
10.2 The Purchaser shall not be entitled to assign, novate, deal or transfer with any of its rights or obligations under this Agreement without the prior written consent of the Seller.
11. INDEMNITY
Each Party, the one to the other, hereby agrees to at all times indemnify and hold harmless the other from and against all costs, expenses, payments, charges,
losses, (including consequential losses, losses of revenue, profit or opportunity), demands, liabilities, claims, actions, proceedings, penalties, fines, damages,
judgments, orders or other sanctions that arise out of the performance of any obligation in terms of this Agreement
12. LAW APPLICABLE
This Agreement shall in all respects be governed by and construed in accordance with the law of the Republic of South Africa. All disputes, actions and other matters arising in connection with this Agreement shall be determined in accordance with such law.
13. JURISDICTION
The Parties hereby consent to the jurisdiction of the Magistrates Court having jurisdiction over it in respect of all proceedings in connection with this Agreement. Notwithstanding the above, the Parties shall have the right to institute all or any proceedings connected with this agreement in any Division of the High Court of South Africa having jurisdiction in the matter.
14. EXCUSABLE DELAY
In the event that either Party is prevented from performing any of its obligations as a result of an Excusable Delay, such Party shall promptly communicate in writing with the other Party notifying it of the particular instance of Excusable Delay. In the event of the instance of an Excusable Delay prevailing for more than 30 days, after the giving of such written notice, the so notified Party shall be entitled to terminate this Agreement by written notice to the notifying Party.
The Parties, following upon such termination, shall remain obligated, each to the other, for all obligations respectively incurred by them prior to the date of such termination.
15. CANCELLATION
Should either Party commit any breach of this Agreement and fail to remedy the breach within 30 business days after receiving written notice to do so, then the other Party shall be entitled to cancel this Agreement by giving written notice to that effect. A breach of this Agreement shall include but not be confined to the following-
15.1 should the Purchaser fail to pay the Purchase Price or Support fees or any other charges due in terms of this Agreement on the due date thereof; or
15.2 should the Seller fail to deliver and install the Equipment at the Premises on the Installation Date;
15.3 should the Seller fail, within 30 days, to Service or Swap Out the Equipment after having received notification from the Purchaser.
The Parties shall be entitled to change the particulars of their addresses and contact numbers, as listed above, to any other address or contact number in the Republic of South Africa by giving 20 days prior written notice to that effect
16. INTERPRETATION
The headings in this Agreement are for convenience only and shall not be taken into account in interpreting it.
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