TERMS AND CONDITIONS
- The masculine shall include the feminine and the singular shall include the plural.
- Where figures are referred to in numerals and in words, the words shall prevail if there is any conflict between the two.
- Words and expressions defined in this Agreement shall bear the same meaning in related schedules, Annexure or Documentation, which may not them-selves contain their own definitions.
- Headings have been inserted for convenience only and shall not be used for the interpretation of the Agreement.
- Any reference in the Agreement to date of signature shall be read as meaning a reference to the date of the last signature of the Agreement.
- If any provision in a definition is a substantive provision, conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
The following words will have the meaning defined below and are substantive provisions.
- Agreement – Agreement including Proposal, Annexure and revisions signed by duly authorised representatives of both Parties.
- Agreement Activation Date – The Agreement will be activated on the date of signature by both Parties. The Agreement will remain active for the Agreement Term calculated from date of the Solution being commissioned.
- Agreement Term – Minimum period of the Agreement expressed in number of months or years.
- Agreement Term Extension(s) – The Agreement will be automatically renewed when the Agreement Term has reached maturity. The Agreement Term Extension will be equal to the proceeding Agreement Term subject to either Parties right to activate Agreement Termination.
- Agreement Termination – Either Party may terminate the Agreement by giving the other Party sixty (60) days written notice before the Agreement Term reaches maturity.
- Agreement Value – All amounts (excluding VAT) which are payable by the Client to KAB Technologies for the full Agreement Term after any permitted adjustments are made and after taking into account any price adjustments determined in accordance with the Agreement.
- Business Hours – Week days, 8am to 5pm and Saturdays, 9am to 2pm. Public holidays are excluded.
- Client – Company or individual that has commission the Solution and/or signed the Agreement.
- Commission/Commissioning/Commissioned – Implementation of Elements, Equipment and the Solution.
- Contracted Hours – Number of re-active support hours purchased in advance.
- Element(s) – Components, hardware or Equipment used to construct the Solution.
- Equipment – All KAB Technologies supplied infrastructure that has not been fully paid for or is rented by the Client. Infrastructure includes, without limitation, hardware, software and Solution Elements.
- Implementation Plan – Dynamic document or emails maintained by KAB Technologies that details Commissioning of the Solution.
- Insurance Value – Recommended value of KAB Technologies owned Equipment to be comprehensively insured by the Client.
- Party/Parties – KAB Technologies and/or the Client
- Proposal – Solution and cost overview presented to the Client for acceptance and signature.
- Service(s) – Elements or Equipment used to build the Solution.
- Site(s) – KAB Technologies and/or Client premises detailed in the Agreement.
- SLA – Service Level Agreement
- Solution – Sum or all Elements, Services and Equipment included in the Agreement.
- Upstream Provider(s) – KAB Technologies appointed representatives, agents, sub-contractors, service providers or suppliers.
1.3. Equipment, Element and Solution Performance:
- Performance standards and measurement criteria may be detailed in the Proposal or Agreement when applicable.
- The Solution will be based on a detailed requirement document or email provided by the Client. If the document or email is not provided, KAB Technologies will make a recommendation based on its understanding of the requirements which will be presented in the Proposal.
- The Client acknowledges that KAB Technologies may utilise Upstream Providers to provision Equipment or Elements. Such Equipment or Elements is therefore provided subject to the performance limitations and terms imposed by the Upstream Provider which may include limitations on bandwidth.
- Elements provided by way of Metro-Wireless & ADSL are considered “Best Effort” so are excluded from any performance guarantees
1.4. Fault Logging and Service Requests
- All maintenance, fault or service requests must be logged with the KAB Technologies Support Centre during Business Hours. The Client may call 0860 522 832 or Email email@example.com ( or clients support queue ‘clientcode’@kabtech.co.za )
- The Client will be provided with a ticket reference number. The request will be dealt with telephonically, remotely, or if applicable, a technician will be dispatched to the Client Site. Upon completion, the Client will receive an email confirming completion of the request. The Client has 24 hours to respond by return email if the request has not been satisfactorily completed. Failing such response, the ticket will be closed and billed if applicable.
1.5. Solution Implementation
- Commissioning will be performed according to an Implementation Plan with the co-operation of the Client. KAB Technologies will inform the Client of the planned Commissioning date of Elements or Equipment. Commissioning will be scheduled during Business Hours unless otherwise agreed with the Client in writing.
- It is recognised that KAB Technologies Implementation Plans may be dependent on Upstream Providers. The Implementation Plan will therefore be a dynamic document which is subject to change by KAB Technologies with the co-operation of the Client. Implementation Plan changes will not be in conflict with provisions of the Agreement.
- The Client acknowledges that Solution change requests after Commissioning has commenced may result in additional costs and lead times.
- Client personnel will provide KAB Technologies and its Upstream Providers with reasonable access to relevant Sites and Client personnel may be requested to keep the Site open after Business Hours to allow completion of Commissioning.
Each Party will designate a responsible person for the full duration of Solution Commissioning. The responsible person will represent the Party in all aspects of Commissioning.
1.6. Network SLA Exclusions
Many possible situations are completely beyond the control of KAB Technologies, and therefore are not in the scope of this SLA. These situations include:
- Scheduled Network Maintenance – occasionally network maintenance will be required. KAB Technologies will do everything possible to minimize and avoid downtime during this maintenance. You will receive prior notification of upcoming maintenance at the e-mail address we have on file. Scheduled maintenance periods are not eligible for SLA credits.
- Malicious Attacks – if a third party not associated with KAB Technologies initiates a “Denial of Service” or other form of disabling attack against our network, KAB Technologies will do everything in its power to stop the attack, but cannot guarantee a resolution time.
- Legal Actions – In the case that a legal action is taken against a customer of KAB Technologies and KAB Technologies is required to act in accordance with the order, KAB Technologies shall not be responsible for any SLA damages.
1.7. Client Responsibilities
- Client personnel shall reasonably co-operate with KAB Technologies or its Upstream Providers during Commissioning, maintenance, fault identification and resolution. The Client shall provide all assistance necessary for KAB Technologies to execute the Services.
- Equipment supplied by the Client as part of the Solution remains the responsibility of the Client.
- The Client shall ensure KAB Technologies Equipment in its possession, which is not fully paid for, is comprehensively insured at its own cost. A recommended Insurance Value may be detailed in the Agreement or requested by the Client.
- The client shall ensure KAB Technologies Equipment in its possession is located in accordance with the manufacturer’s environmental specifications including, without limitation, free of dust, dirt or liquids.
- The Client will keep all KAB Technologies Equipment in its possession safe and secure at all times.
- The Client will not sublet or allow any third party to use or tamper with KAB Technologies Equipment.
- The Client will not represent himself as the owner of KAB Technologies Equipment in his possession that has not been fully paid for. This includes, without limitation, the sale, transfer, disposal, mortgage, charge or permitting possession of the Equipment to be taken from the Client.
- The Client will allow KAB Technologies or its Upstream Providers reasonable access during Business Hours, to any Site where KAB Technologies Equipment is located.
- Except where expressly agreed in writing, the Solution shall not include repairs, replacements or adjustments caused by:
a) Failure of the Client to observe specifications relating to Equipment environmental conditions.
b) Equipment misuse, abuse, negligence or accident caused by employees or Upstream Providers of the Client.
c) Work, modification or alteration carried out on Equipment by any Party other than KAB Technologies.
d) Use of the Equipment by the Client, its employees or Upstream Providers for purposes outside the design parameters or Agreement terms.
- Any costs relating to Equipment repairs, replacements or adjustments necessary as a result of non-compliance by the Client, its employees or Upstream Providers, will be invoiced at standard call-out rates and actual costs for repairs and replacements.
- Except where expressly agreed in writing, the Client shall be responsible for implementing regular and systematic back-up procedures of all relevant Client information, irrespective of whether the Client has contracted KAB Technologies to perform this function on their behalf.
1.8. Solution Changes
The following is for month-to-month clients only and can be only implemented once in a 4-month cycle
- It is agreed by the Parties that if a Solution change is necessary during the Agreement Term, such Solution changes may have cost and contractual implications which must be mutually agreed by signing an updated Agreement.
- Once a business contract has matured the following procedure can be applied:
a) Submit a written Solution change request to KAB Technologies. KAB Technologies will present a Proposal and updated Agreement to the Client detailing the updated Solution and cost implications no later than thirty (30) days after receiving the change request.
b) The Client will respond to the Proposal no later than seven (7) days after receiving the Proposal. The response will advise KAB Technologies if the Client authorises the Proposal and include a signed copy of the Proposal and updated Agreement.
c) Pending Proposal authorisation, KAB Technologies shall proceed in accordance with the latest signed Agreement.
d) Upon Proposal authorisation by the Client, Commissioning will be performed according to an Implementation Plan with the co-operation of the Client.
1.9. Equipment Rental
The following is applicable if a Client rents Equipment from KAB Technologies:
- Ownership of rented Equipment will remain with KAB Technologies unless otherwise agreed by both parties in writing.
- KAB Technologies has no obligation to assist the Client with moving of data, software or configurations if the Agreement is terminated. KAB Technologies will however submit a quote to undertake this work if requested by the Client in writing.
- The Client may purchase the Hardware on Agreement Term maturity. The Hardware purchase price will be equal to twelve (12) months of the Hardware Agreement rental. The Client shall notify KAB Technologies in writing of its intention to purchase the Hardware thirty (30) days prior to the Agreement Term reaching maturity.
1.10. Costs and Payment
- Solution, Equipment and Commissioning costs are set forth in the Proposal and relevant Annexure.
- Costs are exclusive of V.A.T unless otherwise stated.
- Account facilities may not be approved without successful credit and reference checks.
- KAB Technologies will invoice (VAT invoice) Solution costs monthly in advance and the Client will pay all invoices before month-end of the month the invoices were generated.
- All payments are to be undertaken via electronic transfer or debit order.
- Unless account facilities are authorised by KAB Technologies, payment is required for Equipment sales exceeding R1000 prior to KAB Technologies ordering the Equipment.
- KAB Technologies charges service fees for work undertaken outside Business Hours, when applicable, at one point five (1.5) times the standard hourly rate.
- KAB Technologies charges service fees for work undertaken on Sundays and public holidays, when applicable, at two (2) times the standard hourly service rate.
- KAB Technologies charges travel fees for travelling to/from Client Sites, collections or deliveries.
- KAB Technologies reviews standard hourly service and travel costs on an annual basis.
- The Client agrees to pay interest on any due amount that is unpaid by month-end at an interest rate determined by KAB Technologies which will not exceed the prime overdraft rate of the ABSA Bank of South Africa, calculated and compounded monthly in advance.
- If payment is not received in full, within the stipulated period, KAB Technologies shall be entitled to suspend Services, Elements or the entire Solution until full payment is received. Suspension of Services, Elements or the entire Solution shall not be a validreason for withholding or reducing any due payments. KAB Technologies may charge reconnection fees for suspended Services, Elements or the entire solution.
- If a charge is disputed, the Client shall pay the undisputed charges, in terms of the Agreement, and if the outcome of the dispute is in favour of KAB Technologies, the Client shall be liable for interest.
- KAB Technologies will commence invoicing on Commissioning or delivery of Equipment and/or the Solution. The Client will pay for the month during which the Solution is Commissioned if said Commissioning takes place on or before the fifteenth (15th) of the month.
1.11. Cost Escalation
- Annual cost increases will be avoided as far as is possible but may be introduced on the 1st (first) of January of each year, during the Agreement Term, based on market forces and the percentage change in the year on year (December to December) Consumer Price Index (CPI) as published by Statistics South Africa in terms of the Statistics Act 1976 as amended (or any statute replacing such Act).
- Cost increases resulting from circumstances beyond the control of KAB Technologies will be transparently passed on to the Client. These circumstances include, without limitation, Upstream Provide increases and exchange rate fluctuations.
- When cost increases are introduced, they will not exceed 10% (ten percent) per annum for the full Agreement Term.
1.12. Agreement Suspension
- KAB Technologies may suspend the entire Agreement or Solution elements, without prejudice to its rights in terms of the Agreement, if any of the following circumstances become applicable:
a) The Client fails to comply with the Agreement, including failure to pay due amounts, within seven (7) days of written notice being received by the Client until the breach is remedied.
b) When applicable, a reconnection fee may be invoiced to the Client.
c) During any modification, replacement or maintenance of Solution Elements as agreed by both Parties in writing.
1.13. Agreement Termination of contract – Official notice to be sent to firstname.lastname@example.org
- Cancellation of Business or Consumer contracts before the given time period. Will carry a handling fee equal to 100% of the total remaining contract value
- All hardware strictly remains the property of KAB Technologies until Contract matures, unless stated otherwise
- Agreement Termination will not discharge either Party from performing any obligation already due or from making payment of any amounts already due or becoming due by reason of the Termination.
- KAB Technologies will continue providing the Solution and performing its obligations in terms of the Agreement after receiving a written Agreement Termination notice from the Client that complies with the Agreement terms and the termination penalties fee in full.
- The Services will remain active for a reasonable period as requested by the Client in writing. The Client will be obliged to pay applicable charges during the Termination period.
- If the Agreement terminates at any time by reason of default or breach by the Client, resulting in KAB Technologies not being able to meet its obligations in terms of the Agreement, the Client will no longer have any right to use KAB Technologies supplied Equipment that is not fully paid for and will immediately make such Equipment available for collection by KAB Technologies or its Upstream Providers. The Client also agrees that KAB Technologies or its Upstream Providers may enter applicable Sites to recover or remove such Equipment.
- If the Agreement terminates at any time by reason of default or breach by the Client, resulting in KAB Technologies not being able to meet its obligations in terms of the Agreement, the Client will be liable to pay all arrear amounts due at the date of termination including an amount equal to the pro-rata balance of the Agreement Value.
1.14. Notice Period – Once the contract has matured – Official notice to be sent to email@example.com
- a) Termination of business contract 60 calender day notice (see app.). Once contract has matured
- b) Termination of consumer contract 30 calender day notice (see app). Once contract has matured
- c) Termination of contract 30 calender day notice (see app). Month-to-Month
1.15. Limitation of Liability
- Neither KAB Technologies, nor its Upstream Providers, will be liable for defamation or infringement of copyright from, or in connection with, the transmission of communications using the Solution provided by KAB Technologies.
- Neither KAB Technologies, nor its Upstream Providers, will be liable for any claim arising out of any act or omission of the Client or any other entity furnishing Services or Equipment for use in conjunction with the Solution provided by KAB Technologies.
- Neither KAB Technologies, nor it’s Upstream Providers, warrant or guarantee the information transmitted over the Solution will be preserved or sustained in its entirety, will be suitable for any intended purpose, will be free of inaccuracies, defects, bugs or viruses and will not contravene the laws of a particular country.
- Neither KAB Technologies, nor its Upstream Providers, will be liable for any unlawful or unauthorised use of the Solution by the Client, its employees, its Upstream Providers or invitees.
- Neither KAB Technologies, nor its Upstream Providers, will be liable for any claim arising out of a breach in the privacy or security of communications transmitted over the Solution.
- Neither KAB Technologies, nor its Upstream Providers, will be liable for any claim arising out of Solution availability or suspension.
- KAB Technologies and its Upstream Providers shall take all reasonable precautions for the safety of the Client’s property against damage as a result of the Commissioning or maintenance of the Solution. KAB Technologies may therefore only be liable for direct Client property damage that may be caused by negligence during Solution Commissioning or maintenance.
- The Client indemnifies KAB Technologies, and it’s Upstream Providers, and holds them harmless, against any claim by the Client, or by any third party, arising directly or indirectly out of the client’s access to, or use of, any service or information obtained through the Solution.
- Notwithstanding the provisions and remedies set out above, in no event will KAB Technologies or its Upstream Providers be liable to the Client or anyone else for special, collateral, exemplary, indirect, incidental or consequential damages including, without limitation, loss of goodwill, loss of profits or revenues, loss of Client information or data, loss of savings, loss of use and interruptions, whether such damages occur prior or subsequent to, or are alleged as a result of breach of any of the provisions of the Agreement, even if KAB Technologies has been advised of the possibility of such damages.
- All warranties that may be deemed applicable to the Solution, including but not limited to implied warranties of merchantability or fitness for a particular purpose, are expressly disclaimed.
- The remedies of the Client set forth herein are exclusive and in lieu of all other remedies, express or implied.
1.16. Cession and Assignment
- Neither Party may cede, assign or transfer the Agreement or any portion of the Agreement without the prior written consent of the other Party, whose consent shall not be unreasonably withheld.
1.17. Independent Contractor and Subcontracting
- The relationship between KAB Technologies and Client under the Agreement will be that of an independent contractor.
- KAB Technologies will exercise its own discretion on the method and manner of performing its obligations.
- The Client agrees that KAB Technologies may, at its sole discretion; use Upstream Providers for the whole or any part of its obligations under the Agreement and KAB Technologies agrees that it will retain full responsibility for such obligations.
- KAB Technologies and the Client may exchange confidential information as is reasonably necessary for each to perform its obligations under the Agreement. All information relating to the Agreement provided by either Party is hereby deemed to be confidential and proprietary.
- The Party receiving confidential information will not, without prior written consent of the Party disclosing such information, use the information for any purpose other than the purpose of the transaction and/or Agreement. The receiving Party shall not disclose any portion of the information to any persons or entities other than the employees of the receiving Party (and Upstream Providers when applicable) who reasonably need to have access to the information in connection with the purposes of the transaction and/or Agreement.
- A receiving Party will not be liable for disclosure of confidential information, or part thereof, if the receiving Party can demonstrate that such information was in the public domain at the time it was received or subsequently entered the public domain through no fault of the receiving Party.
- In the event of any legal action, proceeding or legal requirement for disclosure of confidential information, the receiving Party will notify the disclosing Party in writing. The disclosing Party may request, at the expense of the disclosing Party, the receiving Party to co-operate with lawfully contesting such disclosure.
- The content of this clause will survive termination and/or maturity of the Agreement Term.
1.19. Title and Risk of Loss
- Ownership of purchased, rented or leased Equipment shall remain with KAB Technologies unless otherwise agreed by both Parties in writing or an invoice and corresponding proof of payment can be presented by the Client.
- The risk of loss or damage to Equipment installed on Client premises shall remain with the Client. The Client shall be liable for the full replacement value if any loss or damage happens to KAB Technologies owned Equipment located on Client premises.
1.20. Force Majeure
- Either Party shall notify the other Party, in writing, of Force Majeure events within twenty four (24) hours of such events taking place.
- If either Party is prevented, directly or indirectly, from carrying out any of its obligations under the Agreement, from causes beyond reasonable control of that Party, including, without limitation, acts of God, civil commotion, riots, acts of government or like causes, the affected Party shall be relieved of its obligations during the period of such events and its consequences to the extent so prevented. The affected Party shall not be liable for any delay or failure in the performance of obligations or loss or damage, general, special or consequential, which the other Party may suffer due to the Force Majeure event.
- The Parties hereby agree that should Force Majeure last more than fourteen (14) consecutive days, the Party who has not invoked Force Majeure, may terminate the Agreement, without penalty, by giving ten (10) days written notice to the other Party.
1.21. Additional Provisions
- Severability – If any portion of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the entire Agreement but rather the entire Agreement will be construed as if not containing the particular provision and the rights or obligations of the Parties will be enforced accordingly.
- No Waiver – Failure by either Party to exercise any rights under this Agreement in any one or more instances will not constitute a waiver of such rights in any other instance. Waiver by such Party of any default under the Agreement will not be deemed a waiver of any other default. No alteration or modification of any provision of the Agreement will be deemed a waiver of any other default. No alteration or modification of any provision of the Agreement will be binding unless in writing and signed by duly authorised representatives of both Parties.
- Notices and Domicilium – For the purpose of the Agreement, the Parties choose their domicilium citanci et executandi for all notices and processes at their respective addresses as given on the covering page of the Agreement.
- Any notice given in terms of the Agreement shall be in writing and shall be deemed to have been received by the addressee on the date of delivery if delivered by hand or on the 8th (eighth) business day following the date of posting by prepaid registered post. If transmitted by facsimile, it will be deemed to have been received by the addressee one (1) business day after dispatch.
- The Client agrees not to employ, directly or indirectly, any KAB Technologies employee during the Agreement Term, while KAB Technologies provides Services or for a period of 2 (two) years after the Agreement Terminates or KAB Technologies ceases to provide Services to the Client. Should the Client employ, directly or indirectly, any KAB Technologies employee during this period, the Client agrees, without reservation, that KAB Technologies will, at its sole discretion, be entitled to a finder’s fee, payable by the Client on presentation of an invoice. The finder’s fee will be equal to two (2) years of the employees annual total cost to KAB Technologies.
- The Client may not at any time use the Solution in contravention of any South African law. In particular, the Client undertakes to familiarise himself and ensure that he is kept appraised of South African law from time to time, which has any bearing on the Solution and/or its use. KAB Technologies has no obligation to assist the Client in this regard.
1.22. Dispute Resolution
- KAB Technologies and the Client agree that disputes will be dealt with in a spirit of co-operation, good faith and equitable business practice.
- Should any dispute arise between the Parties, they shall meet within 15 (fifteen) days of written notice being received by the receiving party, to negotiate in good faith with a view to resolving the dispute.
- Should the Parties fail to resolve the dispute between themselves within 30 (thirty) days of the written notice, the Parties shall within 5 (five) days refer the dispute to a joint committee of the Parties respective Executive Management. The joint Executive Management committee will use their best endeavours to settle or resolve the dispute as expeditiously as possible but within a maximum period of 15 (fifteen) days of the matter being referred to them.
- Should the joint Executive Management committee be unable to resolve the dispute in the applicable time period, either Party will be entitled to commence litigation proceedings against the other Party in a court of competent jurisdiction.
- Notwithstanding anything to the contrary contained in this clause, neither Party shall be precluded from obtaining interim, injunctive or similar relief from a court of competent jurisdiction.
- The provisions of this clause constitute an irrevocable consent by the Parties to any proceedings of this clause and neither Party shall be entitled to withdraw from or claim that it is not bound by such provisions.
1.23. Debit Order Mandate
- This signed Authority and Mandate refers to our contract as dated as on signature hereof (“the Agreement”). I / We hereby authorise you to issue and deliver payment instructions to the bank for collection against my / our abovementioned account at my / our above mentioned bank (or any other bank or branch to which I / We may transfer my / our account) on condition that the sum of such payment instructions will never exceed my / our obligations as agreed to in the Agreement, and commencing on the commencement date and continuing until this Authority and Mandate is terminated by me / us by giving you notice in writing of no less than 20 ordinary working days, and sent by prepaid registered post or delivered to your address indicated above
- The individual payment instructions so authorised to be issued must be issued and delivered as follows:
- On the first working day of each month. In the event that the payment day falls on a Saturday, Sunday or recognized South African public holiday, the payment day will automatically be the very next ordinary business day. Further, if there are insufficient funds in the nominated account to meet the obligation, you are entitled to track my account and re-present the instruction for payment as soon as sufficient funds are available in my account.
- I / We understand that the withdrawals hereby authorised will be processed through a computerized system provided by the South African Banks and I also understand that details of each withdrawal will be printed on my bank statement. Each transaction will contain a number, which must be included in the said payment instruction and if provided to you should enable you to identify the Agreement. A payment reference is added to this form before the issuing of any payment instruction. I / We shall not be entitled to any refund of amounts which you have withdrawn while this authority was in force, if such amounts were legally owing to you.
I / We acknowledge that all payment instructions issued by you shall be treated by my/our above mentioned bank as if the instructions had been issued by me/us personally.
I / We agree that although this Authority and Mandate may be cancelled by me / us, such cancellation will not cancel the Agreement. I / We shall not be entitled to any refund of amounts which you have withdrawn while this authority was in force, if such amounts were legally owing to you.
I / We acknowledge that this Authority may be ceded to or assigned to a third party if the agreement is also ceded or assigned to that third party, but in the absence of such assignment of the Agreement, this Authority and Mandate cannot be assigned to any third party.
1.24. Entire Agreement
- This Agreement, Proposal and Annexure constitute the entire Agreement between the Parties and will supersede any prior written or oral agreement or understanding with respect to the subject matter.
- No interpretation, amendment, or change to this Agreement will be effective unless made in writing and signed by both Parties. Each Party may however change the address or the name of the person to whom notices will be sent by giving written notice of such change to the other Party.
SCOPE OF THE AGREEMENT
This agreement defines the responsibilities and obligations of KAB Tech with regard to maintenance of Metro Ethernet equipment supplied by KAB Tech.
HOURS OF BUSINESS
The Office hours of KAB Tech are 08h00 – 17h00 Monday – Friday (excluding Public Holidays). During these times a KAB Tech representative will be available to receive the request from the client.
- KAB Tech abides by a best effort philosophy to ensure uptime as far as humanly possible
- All devices are monitored 24 x 7 by the KAB Tech network operations centre
- In the event of disrupted connectivity, the obstruction will be qualified and a technician will respond to the point of failure within 2 hours during normal business hours.
- KAB Tech technicians carry with them replacement parts for all deployed devices at all times
- Penalties can be claimed in the event that a client experiences 0.2% (Point two) percent below the specified operational uptime, KAB Tech, at the request of the customer shall process a pro rata credit to the value of 1% (one percent) from the monthly
- Connection service fee. This will calculated monthly starting from the commencement date.
- Penalty calculations will be based solely on the Customer’s service ticket raised to report connectivity issues. The time the call was logged will be the sole basis for penalty calculations, until the service is restored. Credits will only be paid subject to the correct procedure for the raising of a service ticket being followed.
- In the event of any conflict between KAB Tech’s subscriber terms and conditions and the terms and conditions of this SLA, the terms and conditions of this SLA shall prevail
RESPONSIBILITIES OF KAB TECH
KAB Tech, at the charges set forth in this agreement shall maintain the equipment in a normal operating condition. Refer to Service Exclusions.
If a faulty unit cannot be repaired on-site, KAB Tech’s personnel will replace the unit with a temporary replacement unit. The defective unit will be removed to a KAB Tech workshop for repair and returned at a later mutually convenient date. KAB Tech will ensure that all personnel are suitably trained and professionally managed.
KAB Tech will include unlimited site visits per month when necessary as part of this agreement / KAB Tech will include all necessary site visits and labour required to meet the stipulated service levels of this agreement. There will be no charge for these visits.
Service required outside of KAB Tech office hours will be quoted and charged for separately.
RESPONSIBILITIES OF THE CLIENT
A designated client representative shall be elected by the client to handle all correspondence between KAB Tech and the Client.
Upon arrival at site, the client will allow KAB Tech personnel and specialised contractors to carry out repairs to equipment as per the agreement. The client will allow the removal of equipment to KAB Tech’s workshop for repairs if repair cannot be affected on-site. The client is responsible for raising a service request in the event of disrupted service.
The client will ensure that the environmental conditions conform to the manufacturer’s specifications. All time calculations measured under this SLA will be based on the service request log timestamp.
It is agreed that this agreement excludes services, repairs or replacements necessitated by:
- Abnormal operating conditions such as abnormally high or low temperature, humidity or dust;
- Damage caused by Acts of God, lightning, power surges, fire, water, accident, riots, acts of terrorism and civil disorder;
- Connection of unauthorised auxiliary equipment;
- Misuse of equipment;
- Electrical work external to equipment;
- Equipment damaged due to improper use;
The service agreement does not include:
- Hardware upgrades necessary to accommodate new revisions of software.
- Major software changes to the core of the system for new features.
- User training.
- External cleaning of equipment.
EXCEPTIONS TO THIS AGREEMENT
The KAB Tech network operations centre has no obligation to support:
- Non-qualified network failure
- Router failure where KAB Tech did not explicitly provide the router as part of the solution delivered to the client
- Network related issues where the issue lies beyond the point of network termination provided by KAB Tech.
Nor events wherein:
- Safety of KAB Tech employees is potentially at risk
- Uptime is disrupted at the client site as a result of power outages
- Equipment has been tampered with.
- Equipment is lost or damaged due to theft or vandalism.
- Access to installed equipment is prohibited or limited by vandalism, acts of God, lighting, fire, riots, acts of terrorism and civil disorder
- Where corrective measures may result in the team contravening any legal and/or safety guidelines or regulations, such as climbing masts in inclement weather.
All requests shall be forwarded to KAB Tech via the following: telephone 0210070929, where a service representative shall assist and raise a service request whilst qualifying the point of failure or email firstname.lastname@example.org, where the service request will automatically be generated and ticket number will be sent back to the client. A service representative will then contact the client to qualify the point of failure. Requests must come from the designated client representative(s).
PERIOD OF SERVICE
The agreement shall commence from the first day of handover until the contract is terminated by expiration and cancellation of the contract following the correct procedures.
The client will be entitled to apply for premature termination of a contract due to this SLA not being met for 3 consecutive months.
In the event of cancellation of this contract by the client other than by reason of expiry of this contract, the client shall, subject to the provisions of section 14(3)(a) and (b) of the Consumer Protection Act 68 of 2008, provide KAB Tech with twenty (20) business days written notice of such cancellation.
KAB Tech may cancel the agreement 20 business days after giving written notice to the client of a material failure by the client to comply with this agreement, unless the client has rectified the failure within that time.
Upon cancellation of this agreement by either party, the client will remain liable to KAB Tech for any amounts owed to it in terms of this agreement up to the date of cancellation. Notwithstanding the above KAB Tech may, in the event of cancellation of this agreement by the client other than due to expiry of this agreement, impose a reasonable cancellation penalty with respect to any goods supplied, services provided, or discounts granted, to the client in contemplation of the agreement enduring for its intended term.
CHARGES AND PAYMENT TERMS
If any services are provided outside the terms of this agreement, the client will be charged for all time spent and expenditure incurred at KAB Tech’s prevailing rates in respect thereof then in effect.
All amounts payable by the client to KAB Tech in terms of this agreement exclude VAT. All invoices will be payable seven (7) days from date of invoice. Payment for the initial contract month must be paid on signature of the contract.
LIMITATION OF LIABILITY AND WARRANTY
KAB Tech’s liability in terms of this agreement will be completely discharged if the client attempts to correct or allows third parties to correct faulty equipment without the prior consent of KAB Tech.
KAB Tech’s warranty under this agreement is limited to the provision of services and parts under the terms of this agreement, to maintain or restore the equipment to the best of its ability to good operating condition and working order, and in accordance with the application specifications for the equipment.
Without admission on any liability in the event of any harm/ any indirect, direct, special or consequential damages, including but not limited to, lost business and lost profits or anticipated expenses whether foreseeable or not, arising from any defect, failure or hazard arising from the manufacture, supply or installation of the product, KAB Tech undertakes to replace or repair the product manufactured, supplied or installed by KAB Tech.
Any warranty in terms of this agreement is concurrent with any other deemed, implied or express warranty; is void if the client has subjected the part, or the goods or property in which it was installed, to misuse or abuse; and does not apply to ordinary wear and tear, having regard to the circumstances in which the goods are intended to ordinarily be used.
The client hereby indemnifies KAB Tech in respect of any claim of whatsoever nature or howsoever such claim arises, if:
(a )the unsafe product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation;
(b) the alleged unsafe product characteristic, failure, defect or hazard
(i) did not exist in the goods at the time it was supplied to the client; or
(ii) was wholly attributable to compliance by the client with the instructions provided by the person who supplied the goods to the client.
Neither party hereto shall have any liability by reason of failure to fulfill any obligations in terms of this agreement if force majeure or any events beyond the reasonable control of such party, occasions such failure. The onus of proving that such failure was occasioned by force majeure shall rest on the party alleging same.
This agreement together with the equipment schedules and basic monthly charges agreement constitutes the entire agreement between KAB Tech and the client and supersedes all oral, written or implied agreements between the parties. All modifications, cancellations or amendments hereof shall not be binding unless reduced to writing and signed by both parties.
There are no warranties expressed or implied, oral or written, in fact, by operation of law or otherwise, except expressly stated herein. The headings to this agreement are used for the sake of convenience and shall not govern the interpretation thereof.
The law applicable to this agreement shall be the law of the republic of South Africa. The failure of any party hereto, to enforce at any time the provisions of this agreement shall in no way be construed to be a waiver of such provisions or of the right of any party thereafter to enforce each and every such provision.
The parties agree that KAB Tech will be entitled at its option to institute any legal proceedings arising out of this agreement in any magistrates’ court, having jurisdiction over the client even if the cause of the action in question exceeds the jurisdiction of that court.
The parties respectively choose their domicilium citandi executandi for all purposes under this agreement, whether in respect of notices or other documents or communications of whatsoever nature at the following addresses.