1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
1.1.1. "AFSA" means the Arbitration Foundation of Southern Africa;
1.1.2. "Agreement" means this Master Services Agreement (MSA), including all Annexures hereto, and any Subscriber Agreement executed pursuant to the terms of this Agreement;
1.1.3. "Customer" means the end user subscribing to any FireStream service or product;
1.1.4. "Charges" shall mean all charges and/or fees payable by the Customer to FireStream for the Services;
1.1.5. "Confidential Information" means any information or data which by its nature or content is identifiable as confidential and/or proprietary to a Party and/or any third party, or which is provided or disclosed in confidence;
1.1.6. "Customer Equipment" means customer premises equipment (modems, routes etc), or any networks or network equipment not owned or controlled by FireStream;
1.1.7. "Documentation" means the documentation supplied by FireStream to the Customer;
1.1.8. "Effective date" means the date of signature on which the Customer agrees to the these terms and conditions;
1.1.9. "ECA" means the Electronic Communications Act 36 of 2006, as amended from time to time;
1.1.10."Customer Premises" shall mean the location or locations occupied by the Customer to which the Services are delivered as specified in the Subscriber Agreement;
1.1.11."Facilities" shall mean any property owned, licensed or leased by FireStream, including points of presence (“POP”), but does not include Customer Equipment, and used to deliver the Services;
1.1.12."Force Majeure Event" means any circumstances beyond the Parties' reasonable control including, without limitation, war, national emergency, civil disturbance, theft, fire, flood, explosion, natural disaster, unusually severe weather conditions, prohibitive legislation or regulations and failure of power or utility supplies (including electronic communications);
1.1.13. "Intellectual Property" means any know-how (not in the public domain), invention (whether or not patented), design, trademark, or copyright material (whether 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, which specifically includes all copyright, design rights and any other proprietary rights in and to any business plans and proposals, business processes and functional and technical specifications and any related material;
1.1.14. "MRC" means monthly recurring cost as set out in the applicable Order Form;
1.1.15. "FireStream" means FireStream (Pty) Limited, a company duly registered under the company laws of the Republic of the South Africa with registration number 2015/276463/07 and having its principal place of business at 3 Bedford Mews, Bedfordview x15, Gauteng, and their appointed agents, partners or similarity appointed authorised resellers;
1.1.16. "FireStream Equipment" means any FireStream equipment or products, including any Facilities, or any other equipment or products which are supplied to the Customer by FireStream (for use in conjunction with the Services);
1.1.17. "Subscriber Agreement" means that the request for services submitted by a FireStream has been duly accepted by the customer;
1.1.18. "Service request Form" shall mean a request for the Services submitted by Customer to FireStream in a form prescribed by FireStream;
1.1.19. "Party" means either of the signatories to this Agreement and “Parties” means both of them collectively and shall be deemed to mean and include their respective successors and permitted assigns;
1.1.20. "Prime Rate" means the prime rate published by FireStream's principle bankers, as certified by any representative of that bank whose appointment and designation it will not be necessary to prove;
1.1.21. "Services" means the services provided by FireStream to the Customer as more fully described in the Subscriber Agreement, including the provision of FireStream Equipment and Facilities;
1.1.22. "Service Activation Date" means the service activation date set forth in the Subscriber Agreement or the date that the Services actually commence, whichever is the earlier;
1.1.23. "Subscriber Agreement" means a schedule signed by both Parties in confirmation that the service ordered has been implemented and completed and the necessary tests have been executed, and the customer accepts this as the formal handover document;
1.1.24. "Service Levels" means the specific performance levels applicable to the provision of the Services;
1.1.25. "Service Term" means the time period, including periods of renewal, specified in each Subscriber Agreement during which the Services specified therein are to be provided;
1.1.26. "Territory" means Republic of South Africa;
1.1.27. "VAT" means value-added tax, chargeable under the VAT Act of 1991.
1.1.28. "Degradation" means the presence of anomalies or defects in the absence of a fault.
1.1.29. "Degraded Service" means the presence of anomalies or defects that cause a degradation in QoS, but do not result in total failure of the service.
1.1.30. "Incident" means a fault that directly affects the Service levels by substantially or completely reducing them. This excludes any faulty Customer equipment.
1.1.31. "MTTRs" (Mean Time to Respond) means the average time from when the ticket is logged with the FireStream Support Deask to the time a FireStream Support Representative attends to the incident or trouble ticket.
1.1.32. "MTRS" (Mean Time to Restore Service) means average time from the first detection or reporting of service interruption to the FireStream Support Desk by the Customer until the time when the service is restored.
1.1.33. "Network Unavailability" means the time where the service is unavailable or degraded to such an extent that it is unusable, measured from the first detection or reporting of service interruption to the FireStream Support Desk by the Customer until the time when the service is restored and excluding any service interruption outside of FireStream’s contracted services supplied to the Reseller. Network Unavailability will not include Scheduled Maintenance/Emergency Maintenance or any unavailability resulting from (a) any local loop provider, (b) Reseller’s applications, equipment or facilities, (c) acts or omissions of Customer or any use of the service authorised by Reseller, (d) reasons of Force Majeure, or (e) power loss and/or interruptions at the Customer Premises.
1.1.34. "NNI" means Network to Network Interface between distinct MEN operated by one or more carriers.
1.1.35. "Off-Net Services" means those Services provided at any Customer or End User premises that are not on FireStream’s electronic communications network and where an infrastructure build will be required to connect the Customer and/or End User to FireStream's electronic communications network.
1.1.36. "On-Net Services" means those Services provided at Customer or End User premises that are on FireStream’s electronic communications network.
1.1.37. "QoS" means quality of service
1.1.38. "SLA" means service level agreement.
1.1.39. "UNI" means the physical interface or port that is the demarcation between the Customer and the service provider (FireStream)
1.1.40. "Uptime" means total number of available minutes in a calendar month.
1.1.41. "AUP" means an Acceptable Use Policy;
1.1.42. "Broadband access service" means the wireless broadband access service provided by FireStream to the user using Fibre, WIFI, WiMAX or other relevant technologies;
1.1.43. "Excessive usage" means usage in excess of that calculated as the average usage for browsing, email, reasonable downloading and the like over a calendar month.
1.2. In this Agreement:
1.2.1. headings and the heading of the Agreement are for convenience only and are not to be used in its interpretation;
1.2.2. a natural person includes a juristic person and vice versa;
1.2.3. the singular includes the plural and vice versa; and
1.2.4. a Party includes a reference to that Party’s successors in title and assigns allowed at law.
1.3. Any reference in this Agreement to:
1.3.1. "Business hours" shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time;
1.3.2. "days" shall 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;
1.3.3. "person" means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality; and
1.3.4. "writing" means legible writing and in English and excludes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No 25 of 2002.
1.4. 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 shall not be construed as limiting the meaning of the general wording preceding it.
1.5. Terms, other than those defined in this agreement, will be given their plain English meaning, and those acronyms and phrases known in the information technology and telecommunications industries will be interpreted in accordance with their general accepted meanings.
1.6. Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
1.7. The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
1.8. No provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement.
2. COMMENCEMENT AND DURATION
2.1. This Agreement shall come into effect on the Effective Date and shall continue in force for an indefinite period unless terminated by either Party in accordance with its terms.
2.2. The initial term of each Subscriber Agreement shall commence on the Service Activation Date and shall expire on the date set forth in the applicable Subscriber Agreement ("Initial Service Term"). After the expiry of the Initial Service Term, the Subscriber Agreement shall automatically renew on a month-to-month basis unless terminated by either Party on one (1) calendar month written notice.
2.3. Notwithstanding the termination of this Agreement, each Service Order Form shall remain in force until termination thereof and shall remain subject to the terms of this Agreement.
3. FireStream OBLIGATIONS
3.1. FireStream shall make the Services available to the Customer as specified in each Srvice Order Form.
3.2. FireStream agree to implement, follow up and support Services, as the Parties deem appropriate under the circumstances in order to foster a satisfactory business relationship between FireStream and the Customer.
3.3. FireStream shall inform the Customer about new developments and modifications to the Services or required equipment.
3.4. In terms of the FireStream Equipment necessary to provide the Service, where required:
3.4.1. FireStream shall ensure that the equipment and, in the event where the equipment consist of more than one component, that each component shall be delivered for installation only at the Customer Location on or before the estimated delivery date;
3.4.2. FireStream shall ensure that all equipment shall be installed at the Customer location in accordance with the manufacturer’s specifications at FireStream’s standard rates;
3.4.3. FireStream shall be responsible for support services to the Customer as set out in the Service Level Agreement.
4. CUSTOMER ORDER PROCEDURE
4.1. The Customer shall order new Services or change existing Services by submitting an Service Request Form to FireStream specifying the new and/or changed Services required.
4.2. FireStream will submit a Subscriber Agreement to the customer acknowledging acceptance of the signed quotation/order and is thereby obliged to provide the requested services.
4.3. FireStream shall be entitled to request, on receipt of an Service Request Form and prior to the issuing of the Subscriber Agreement in terms of clause 4.2, information related to the Customer's creditworthiness. For the avoidance of doubt the Parties agree that FireStream is authorised to conduct all reasonable credit checks and searches.
4.4. Each Subscriber Agreement shall create, subject to the terms and conditions of this Agreement, an individual contractual relationship between the Parties for the provision of the Services for the duration of the applicable Service Term. The provisions of the Subscriber Agreement, once signed by the Customer, shall prevail over the terms and conditions of this Agreement to the extent that there is any conflict between the provisions of the Subscriber Agreement and this Agreement.
5. CONNECTION AND SERVICE COMMENCEMENT
5.1. FireStream shall use best effort to ensure that the Services are made available to the Customer on the Service Activation Date and shall promptly inform the Customer of any delay in meeting the Service Activation Date.
5.2. Notwithstanding anything in this Agreement, the Services shall only commence on the Service Activation Date and there will be no obligation on FireStream to commence provision of the Services prior to the Service Activation Date.
5.3. The Customer shall notify FireStream of any problems with the Services within forty eight (48) hours of the Service Activation Date, failing which, the Services shall be deemed to be accepted by the Customer. In the event that the Customer notifies FireStream of a problem regarding the Services within the specified time period in this clause 5.3, FireStream shall rectify such problem within a reasonable period of time.
6. ACCESS TO THE CUSTOMER AND/OR CUSTOMER PREMISES
6.1. The Customer shall provide FireStream with reasonable access to the Customer Premises to enable FireStream to exercise its rights and fulfil its obligations under this Agreement, subject only to the Customer’s reasonable security policies.
6.2. The Customer shall remain responsible for providing and maintaining the Customer Premises at its own expense. In the event that the Customer fails to maintain the Premises, the Customer shall reimburse FireStream for the any costs incurred to repair or replace any FireStream Equipment and/or Facilities damaged or destroyed as a result of the Customer failure to maintain the premises.
7. ACCEPTABLE USE OF NETWORK AND SERVICES
7.1. The Customer is solely responsible for ensuring that Customer uses the Services lawfully and that the Customer complies with all applicable laws and with FireStream's Acceptable Use Policy (AUP) published on www.firestream.co.za.
7.2. The Customer indemnifies FireStream and holds it harmless against any claims:
7.2.1. arising from a breach of this clause 7; and/or
7.2.2. by third parties in respect of prohibited or unlawful activities conducted by the Customer or its Customers.
7.3. The Customer shall not take any steps or fail to take any steps which directly or indirectly:
7.3.1. rearrange, disconnect, remove, attempt to repair, or otherwise tamper with the Services, without the prior written consent of FireStream;
7.3.2. damage FireStream's network (or any networks interconnected to FireStream) or any part thereof;
7.3.3. cause FireStream to breach any of its licence terms or any provision of applicable legislation;
7.3.4. cause the imposition of any lien or encumbrance on the Facilities and/or FireStream Equipment;
7.3.5. constitutes an abuse of the Services (in the reasonable opinion of FireStream).
7.4. To help ensure that all customers have fair and equal use of the service and to protect the integrity of its network, FireStream reserves the right, and will take necessary steps, to prevent improper or excessive usage. The action that FireStream may take includes, but is not limited to:
7.4.1. Shaping throughput, preventing or limiting service through specific ports or communication protocols, irrespective of usage;
7.4.2. Limiting throughput, preventing or limiting service through specific ports or communication protocols in the case of excessive usage; and
7.4.3. A complete termination of service to customers with improper usage.
7.5. This policy applies to and will be enforced for both intended as well as unintended (e.g. viruses, worms, malicious code, or otherwise unknown causes) excessive and/or prohibited usage.
7.6. Online activity will be subject to the available bandwidth, data storage and other limitations of the Broadband access service, which FireStream may, from time to time, revise at its own discretion and without prior notice to the customer.
7.7. Users may not engage in any activity that compromises or threatens FireStream's ability to provide the Broadband access service in a reasonable and efficient manner to all other users.
7.8. Examples of restricted use include, but are not limited to, running servers (that put traffic on the network) and hosting multi-user interactive forums, such as chat rooms.
7.9. The Broadband access service may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
7.10. Violations of system or network security are prohibited, and may result in criminal and civil liability. FireStream will investigate incidents involving such violations and may involve, or will cooperate with, law enforcement agencies if a criminal violation is suspected.
7.11. Examples of system or network security violations include, without limitation, the following:
7.11.1. Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network.
7.11.2. Unauthorised monitoring of data or traffic on any network or system without express authorisation of the owner of the system or network.
7.11.3. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
7.11.4. Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
7.11.5. Knowingly distribute computer viruses or other malicious computer programs.
7.11.6. The infringement of other’s intellectual property rights or the breaching of any laws or infringement of any third party rights, including without limitation, copyright.
7.12. FireStream reserves the right to implement technical mechanisms which prevent usage patterns in violation of this AUP. FireStream further reserves the right to take such action as may be necessary to protect the integrity of the system, including, but not limited to, system monitoring, as well as protocol management and shutting down of ports affected by viruses, worms or other malicious code.
7.13. Nothing contained in this policy shall be construed to limit FireStream's rights or remedies in any way with respect to any of the foregoing activities, and FireStream reserves the right to take any actions that it may deem appropriate with respect to such activities, including without limitation: investigating suspected violations of this AUP, taking action to recover the costs and expenses of identifying offenders and terminating their access to and use of the Broadband access service, and levying cancellation charges to cover FireStream's costs in the event of termination of access to the Broadband access service. In addition, FireStream reserves all available rights and remedies with respect to such activities at law or in equity.
7.14. This AUP may be clarified or modified periodically and FireStream reserves the right to modify this policy at any time, which changes shall become effective as soon as they are posted to the FireStream website.
8. SUSPENSION OF SERVICES
8.1. FireStream may lawfully suspend, withdraw all or part of any Service at any time until further notice to the Customer if, in FireStream’s reasonable discretion:
8.1.1. the continued provision of the Services will cause FireStream to breach an applicable law or be in contravention of its Licenses;
8.1.2. the Customer is in breach of or otherwise is not complying with any of the provisions of this Agreement; and
8.1.3. Any overdue tax invoice for charges billed by FireStream to the Customer remains unpaid for longer than 7 (seven) days; or
8.1.4. Any debit order transaction against a customer supplied bank acccount is returned due to insufficient funds being available.
8.2. The exercise of FireStream’s right to suspend the Services under this clause 8 is without prejudice to any other remedy available to FireStream under this Agreement and does not constitute a waiver of FireStream’s right to subsequently terminate the Agreement.
8.3. Where FireStream has suspended the Services in terms of clause 8.1, FireStream may:
8.3.1. refuse to reconnect the Services unless precluded by any law or order of court; and
8.3.2. if it agrees to reconnect the Services, require the Customer to pay a reconnection fee of R115 (One Hundred and Fifteen Rand) in advance as a pre-condition to making the Services available again.
9. FEES AND CHARGES
9.1. All payments payable by the Customer in terms of each Subscriber Agreement shall be paid in full without deduction or demand, free of exchange, to FireStream, and the Customer shall not be entitled to withhold any part of such payments or to make anything but the full payments due to FireStream in terms of each Subscriber Agreement.
9.2. FireStream shall be entitled to adjust the fees and Charges as a result of any regulatory, economical, or government imposed factors that impact on such fees and Charges.
9.3. The rates payable by the Customer to FireStream as set out in each Subscriber Agreement hereof shall escalate annually on the annual anniversary date of the Service Commencement Date of the Subscriber Agreement to such rates as may be agreed between the Parties. Failing mutual agreement, then the rates payable for the following twelve month period shall escalate by a maximum factor of the increase in the CPI during the immediately preceding twelve months plus 3% (three per centum).
9.4. Any charges incurred by FireStream in the provision of the Service/s will be increased when increases are applied by the suppliers of these services and products to FireStream, notification will be provided in writing within 14 days of FireStream being made aware of any pending increases.
10.1. Invoices rendered by FireStream in respect of the Services shall be rendered monthly in advance, except for Charges that are dependent upon usage of the Services, which shall be billed in arrears. Billing for partial months shall be pro-rated based on a calendar month.
10.2. All invoices are due payable within seven (7) days after the date of statement.
10.3. If payment is not received by FireStream for any reason whatsoever by the due date for payment, then the Customer shall be liable to pay to FireStream (and without prejudice to any other right or remedy of FireStream):
10.4. Any resulting bank or other charges incurred by FireStream consequent thereupon; and
10.5. Any associated reasonable administrative charges including interest that has accrued on the unpaid amount up until the amount (as provided for in clause 10.1) has been received by FireStream.
10.6. If any amount is overdue, the Customer shall pay interest on the overdue amount at prime rate plus 2% (two percent), such interest to run from the date upon which payment of the relevant amount became due until payment thereof has been made in full (together with interest).
10.7. All Charges for the Services are exclusive of applicable taxes. Except for taxes based on FireStream. Net income, the Customer will be responsible for all applicable taxes. All VAT is payable upon receipt of a valid VAT invoice.
10.8. In the event of any dispute arising as to the amount or calculation of any fee or Charge which is payable by Customer; the dispute shall first be referred to the Financial Directors of the Parties. Should the dispute not be resolved within 7 working days, then the matter shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on FireStream and Customer. The Party at fault, as determined by the independent auditors, shall make payment towards the expenses for the engagement of the independent auditors’ services.
11. SERVICE LEVELS AND MAINTENANCE
11.1. The Subscriber Agreement shall set forth the service levels specifically applicable to the Services ordered by the Customer.
11.2. FireStream is committed to providing a reliable, high quality network to support its services offered. Accordingly, FireStream offers the following guarantees:
11.2.1. Network Availability & Response Times Guarantee - 8 hours response time with 99.55% uptime.
11.2.2. “Network Unavailability” consists of the number of minutes that the FireStream Network is not available to the Customer, and includes unavailability associated with any maintenance at the FireStream hub to which Customer’s circuit is connected other than Scheduled Maintenance. Outages will be counted as Network Unavailability only if Customer opens a trouble ticket with FireStream Customer Support.
11.2.3. Network Availability Process. To receive credit for Network Availability non-compliance, Customer must request such credit within 7 business days from the date of the non-compliance.
11.2.4. Network Availability Remedy. For each cumulative hour of Network Unavailability or fraction thereof in any calendar month, at Customer’s request, Customer’s account shall be credited for the pro-rated charges for one day of FireStream’s Monthly Recurring Charge with respect to which a Network Availability has been non-compliant. The maximum credits for Network Availability shall not exceed 20% of Customer’s Monthly Recurring Charge for the affected Service.
11.2.5. Response Time – this is the time taken for FireStream to respond (acknowledge) that there is a fault on the Network. FireStream will inform the Customer of the Network failure and give estimated times for the Network to be restored.
11.3. Network Latency Guarantee
¾ Real Time – 10 milliseconds or less
¾ Priority Data – 10 milliseconds or less
¾ Basic – 100 milliseconds or less
11.3.1. Latency is the average time for a packet to make a trip between network terminations on the FireStream Network (Gauteng only). Aggregate latency will be monitored by monitoring trip times between NNI to UNI and/or UNI to UNI on an ongoing basis.
11.3.2. After notification of Network Latency being in excess of rates applicable as stated above, FireStream will use commercially reasonable efforts to determine the source of such excessive latency and to correct such problem. If FireStream fails to remedy such Network Latency within two (2) hours of being notified of any excessive Network Latency and average Network Latency for the preceding 30 days has exceeded the rates specified above, Customer will receive, at Customer’s request, a Service Credit for the period from the time of notification by the Customer until the average Network Latency for the preceding 30 days is less than the rates specified above. Customer may obtain no more than 20% of one (1) month Service Credit for any given month.
11.4. Packet Delivery Guarantee
- Real Time - Monthly packet loss no greater than 0.01%
- Priority Data - Monthly packet loss no greater than 0.01%
- Basic Services - Monthly packet loss no greater than 0.5%
11.4.1. Packet Loss is defined as the percentage of packets that are dropped between NNI to UNI and/or UNI to UNI on the FireStream Network (Gauteng only). FireStream monitors this aggregate packet loss and compiles the collected data into a monthly average packet loss measurement for the Network.
11.4.2. After being notified by Customer of Packet Loss in excess of rates applicable as stated above, FireStream will use commercially reasonable efforts to determine the source of such excess Packet Loss and to correct such problem to the extent that the source of the problem is on the Network. If FireStream fails to remedy such excess Packet Loss within two (2) hours of being notified of any excessive Packet Loss on the Network and average Packet Loss for the preceding 30 days exceeds rates applicable as stated above, Customer will receive, at Customer’s request, a Service Credit for the period from the time of notification by the Customer until the average Packet Loss for the preceding 30 days is less than those applicable rates as stated above. Customer may obtain no more than 20% of one (1) month Service Credit for any given month.
11.5. FireStream shall conduct scheduled maintenance in respect of the Services in such a manner that it does not cause unreasonable outage or interruption of the Services. In the event that scheduled maintenance requires a Service interruption or outage, FireStream shall exercise commercially reasonable efforts to:
11.5.1. provide Customer with seven (7) days’ prior written notice of such scheduled maintenance;
11.5.2. work with Customer in good faith to attempt to minimize any disruption in Customer’s services that may be caused by such scheduled maintenance; and
11.5.3. perform such scheduled maintenance during the non-peak hours of 12:00 a.m. (midnight) until 6:00 a.m. local time where reasonably possible.
11.6. The FireStream Support Desk will be available 24 hours per day, 365 days per year to attend to all telephonic, e-mail and web-based support queries. The Support Desk can be contacted telephonically on 0715419142. Additional information can be sent to the Support Desk via e-mail at email@example.com. If for any reason the Supoort Desk cannot be reached telephonically, the Customer shall follow the agreed escalation procedure.
11.7. The Customer shall report all faults to FireStream in accordance with the notification procedure set out in clause 12, using either telephonic, e-mail or web-based media.
11.8. All e-mail requests to the FireStream Support Desk (firstname.lastname@example.org) will be answered within an estimated 8 hours.
11.9. Where assistance is required by either Party, this shall be requested through the FireStream Support Desk.
11.10. A copy of all contact telephone numbers and escalation matrix shall be made available on the FireStream website and will be updated as and when changes occur.
11.11. From time to time testing and routine maintenance will be required on the network infrastructure and will normally be performed during off-peak times (00:00 – 06:00).
11.12. Where testing or maintenance is required during the times stipulated in above, a standard service interruption notification will be communicated to the Customer at least 7 (seven) calendar days prior, where possible.
11.13. FireStream shall monitor the infrastructure platform and notify the Customer in the event of disruptions that will affect the delivery of service.
11.14. The Customer shall supply FireStream with the following details when logging a fault:
- reference number;
- start time of the fault;
- service affected;
- symptoms and nature of the downtime;
- first line support performed by the Reseller
11.15. Scheduled maintenance of the FireStream network (or portion thereof) will not normally result in Service interruption or outage. However, in the event scheduled maintenance should require a Service interruption or outage, FireStream will exercise commercially reasonable efforts to (a) provide Customer with seven (7) days’ prior written notice of such scheduled maintenance, (b) work with Customer in good faith to attempt to minimise any disruption to Reseller’s services that may be caused by such scheduled maintenance, and (c) to perform such schedule maintenance during the non-peak hours of 0:00 (midnight) until 06:00 local time. FireStream will arrange for the necessary repairs arising in terms of this Agreement. FireStream will carry the costs for faults arising in/from FireStream’s equipment. For faults arising in/from the Reseller’s equipment, the Customer shall be liable for all costs incurred in effecting repairs.
12. ESCALATION PROCEDURE
12.1. Should the Customer wish to escalate a problem, either because of the urgency of the problem, or because the Customer does not feel it is being given the priority it deserves, the Customer may contact the FireStream Support Desk with the reference number and request that the problem be escalated.
12.2. If for whatever reason the Customer feels this to be insufficient, the FireStream escalation matrix must be followed.
12.3. Each Party shall follow the sequence of escalation in accordance with the agreed Escalation Matrix.
12.4. The FireStream NOC/Service Manager will take the necessary steps to ensure that the call receives the appropriate priority and/or attention.
13. CHANGE MANAGEMENT PROCEDURE
13.1. Notification of all planned changes or maintenance schedules will be emailed to the Customer.
13.2. The FireStream Support Desk shall try and inform the Customer of any change or scheduled maintenance that will affect service at least seven (7) calendar days before the planned implementation date.
13.3. If the Customer requires that the planned changes or maintenance to be stalled, postponed or rescheduled because of business-affecting reasons, these reasons must be reported to the FireStream Support Desk within 24 hours of receiving notification from FireStream.
13.4. The FireStream Support Desk will inform and consult with the Customer regarding any emergency change or maintenance to correct a fault that will affect service, at least one (1) hour before the implementation, if possible.
13.5. If and to the extent an emergency change is required and, after all attempts to inform the appropriate Customer representative as the Customer escalation matrix failed, FireStream may make such a change provided it is otherwise in compliance with the Master Services Agreement, and shall as soon as reasonably practicable after making such a change and again upon termination of the emergency concerned, provide the Customer representative with full written details of such change and the reason or reasons therefore.
13.6. All changes are managed by the FireStream Support Desk. The start of the change is logged; the change is implemented by trained technical personnel and overseen by a FireStream supervisor. The end of the change is logged and the success thereof logged and recorded.
14.1. Termination for Convenience:
14.1.1. Either Party shall be entitled to terminate this Agreement by providing the other Party with one (1) calendar month prior written notice to that effect.
14.1.2. Termination in accordance with clause 14.1.1 above shall not affect the Service Term of any Service Order Form, which shall continue, in full force and effect, in accordance with the terms and conditions of this Agreement as if this Agreement had not been terminated, until the end of the Service Term of the Subscriber Agreement.
14.1.3. Notwithstanding the Service Term set out in the Subscriber Agreement, the Customer shall be entitled in its sole discretion and without cause, to the terminate one or more Service Order Form's (the “Terminating Services”) by giving FireStream one (1) calendar month prior written notice, which termination shall be subject to the early termination charges set out in clause 15 below.
14.2. Termination for cause:
14.2.1. In the event that there is a breach by either Party, the non-defaulting Party shall be entitled to provide the defaulting Party with 30 (thirty) days’ written notice to remedy such breach, including but not limited to breaches set out below:
18.104.22.168. a meeting of that Party convened to consider or pass a resolution, or a declaration is made in respect of that Party, a petition is presented in respect of that Party, legal proceedings are commenced by or in respect of that Party or any other step is taken, for the provisional or final winding-up, sequestration, judicial management, curatorship or dissolution of that Party’s assets, business, undertaking or estate or with a view to a composition, assignment or arrangement with such Party’s creditors;
22.214.171.124. the Party being or becoming unable (or admitting its inability) to pay its debts generally as they fall due or being (or admitting to being) otherwise insolvent or stopping, suspending or threatening to stop or suspend payment of all or a material part of its debts or making a general assignment or arrangement or composition with, or for the benefit of, its creditors (or any class of them);
126.96.36.199. any business rescue proceedings under the Companies Act, 2008, being commenced against it or a resolution being proposed to place the Party under supervision under the Companies Act, 2008, at any duly convened meeting of the shareholders or board of directors of the Party;
188.8.131.52. any liquidator, curator, judicial manager, business rescue practitioner or similar officer being appointed in respect of the Party or any part of its assets, undertaking, business or estate or such entity (or any organ of that person or entity) requests such appointment;
184.108.40.206. the Party committing any act which, if it were a natural person, would be an act of insolvency as contemplated in the Insolvency Act.
220.127.116.11. The non-defaulting Party shall be entitled to terminate this Agreement, where the defaulting Party fails to remedy, where it is capable of remedy, or persists in, any breach of any of its obligations under this Agreement after having been required to do so within a period of 30 (thirty) days.
15. EARLY TERMINATION COSTS
15.1. The termination fee shall be calculated on the outstanding fees and Charges for each of the terminating Subscriber Agreement's (”Terminating Services”) as at the termination date and will be determined as follows:
15.1.1. In the event that the Terminating Services are terminated prior to the Service Commencement Date thereof, the Customer shall be liable for the lower of the actual costs incurred by FireStream in implementing the Service or the “NRC”, plus 3 (three) months of the MRC;
15.1.2. In the event that the Terminating Services are terminated subsequent to the Service Commencement Date thereof and the Term for the Terminating Services is 12 (twelve) months or less; 20% of the monthly MRC for the remainder of the Service Term of the Terminating Services;
15.2. The Parties acknowledge that the early termination charges set forth in clauses 15 are a genuine estimate of the actual damages that FireStream will suffer and are not construed as penalties for the purposes of this Agreement.
16. EFFECTS OF TERMINATION
16.1. Termination of this Agreement and/or an Subscriber Agreeement in whole or in part, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.
16.2. On termination of this Agreement and/or a Subscriber Agreement:
16.2.1. all benefits (including rights of use and licences) conferred upon the Customer in terms of this Agreement and/or a Subscriber Agreement, shall immediately cease and the Customer shall have no claim, whatsoever, against FireStream. for the loss of such benefits;
16.2.2. the Customer shall return all Facilities and/or FireStream equipment located on the Customer Premises and/or Customer premises or facilitate FireStream's removal of such Facilities and/or FireStream. Equipment; and
16.2.3. the Customer shall promptly return to FireStream or otherwise dispose of as FireStream may instruct all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Customer and relating to FireStream's business (other than correspondence which has passed between the Parties) which the Customer may have in its possession or under its control. The Customer shall also return to FireStream its Confidential Information.
16.3. The termination of this Agreement and/or an Subscriber Agreement shall not of itself give rise to any liability on the part of FireStream to pay any compensation to the Customer, including but not limited to, for loss of profits or goodwill.
16.4. FireStream shall be entitled to cancel all orders for Services placed by the Customer prior to the termination date, whether or not such orders have been accepted by FireStream, without incurring any liability of any nature to the Customer.
17. INTELLECTUAL PROPERTY RIGHTS
17.1. Nothing contained in this Agreement shall be construed to confer or be deemed to confer on either Party the Intellectual Property Rights of the other Party.
17.2. Each party indemnifies the other party against all crimes, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claims of infringement of any patent, trade secret, copyright, trademark, service mark, trade name or similar proprietary right of any third party, which claim arises directly or indirectly out of the infringement by a Party of the intellectual Property Rights of the other Party.
17.3. FireStream retains all right, title and interest in and to its Intellectual Property that is used in connection with the Services. In particular, FireStream retains all right, title and interest in all Intellectual Property rights in and to work products, deliverables, documentation, reports, designs, formulae, methodologies, software, proposals, specifications, feasibility reports and systems, whether used to provide or as are developed or created as part of the Services.
17.4. FireStream shall retain all right, title and interest in all Intellectual Property developed or generated pursuant to and as part of the performance of the Services provided under this Agreement.
The Customer is aware of the FireStream interest in the equipment installed at their premises.
19.1. Each Party hereby warrants unto and in favour of the other Party:
19.1.1. it has full power, authority and legal right to execute this Agreement, to assume the obligations contained in this Agreement, and further to perform and observe the terms and provisions hereof;
19.1.2. to the best of the Party’s knowledge and belief, all facts and circumstances material to this transaction, or which would be material or would be reasonably likely to be material and which may affect the willingness of the Parties to enter into this Agreement are known to the Party, have been disclosed by the Party to the other Party;
19.1.3. as at the Signature Date, no legal proceedings of any kind or administrative proceedings in terms of any law, which shall prevent either Party from fulfilling its obligations in terms of this Agreement, have been instituted against such Party;
19.1.4. at all times during the currency of this Agreement neither Party has any obligations/duties to third parties which, if discharged, shall prevent the Party from fulfilling its obligations in terms of this Agreement; and
19.1.5. all necessary action has been taken to authorise the execution and performance of this Agreement and the execution and performance of this Agreement will not contravene any provision of, or constitute a default under, any other agreement or instrument to which it is a Party or by which it or its property may be bound.
19.2. FireStream does not make any representations or warranties in respect of the quality or functionality of the FireStream Equipment. The Customer shall only be entitled to rely on the warranties and indemnities provided by the original equipment manufacturer in respect of the FireStream Equipment, which warranties and indemnities shall be enforced directly against the original equipment manufacturer and not against FireStream.
The Customer hereby indemnifies and holds FireStream harmless against all loss, damage, costs and/or expenses which FireStream may suffer or incur and any and all claims which may be brought against FireStream by any third party in respect of any loss, liability, damage, costs and/or expenses of any nature whatsoever as a consequence of or which may arise from or is attributable to the engagement of the Customer, the provision of the Services by the Customer or any acts or omissions on the part of the Customer.
21. LIMITATION OF LIABILITY
21.1. Neither Party shall be liable to the other Party for any indirect or consequential loss or damage (including any loss of profit/contract/opportunity) which may be suffered by the other Party under or in connection with this Agreement.
21.2. Subject to Clauses 19.3 and 19.4, the total liability of either Party under or in connection with this Agreement shall, to the extent permitted by Law, not exceed the aggregate value of the Services that have been carried out under this Agreement at the time at which any claim is made.
21.3. Where the insurance cover of any insurance policy that is procured by either Party under this Agreement, which is capable of being called upon to cover any liability/damage, exceeds the aggregate cap of liability specified in Clause 19.2., such aggregate cap of liability shall not compromise the insurance cover that can be claimed by either Party to cover the liability/damage in question. Accordingly, the imposition of such aggregate cap of liability shall not be construed as a stipulatio alteri in favour of any insurer who would otherwise be liable to make payment from the insurance cover to cover a claim that is in excess to such aggregate cap of liability under such insurance policy.
21.4. This Clause 19 shall not limit liability of either Party in any case of fraud, deliberate default or reckless misconduct by either Party.
22. FORCE MAJEURE
22.1. A force majeure event shall occur when either Party is prevented or restricted directly or indirectly from performing all or any of that Party's obligations in terms of this Agreement by reason of Force Majeure, which shall constitute a "Force Majeure Event" for the purposes hereof.
22.2. The exclusive remedy of a Party affected by a Force Majeure Event ("the Affected Party") constitutes that:
22.2.1. it shall be relieved of performance of its obligations in terms of this Agreement during the period that such event and its consequences continue (but only to the extent it is so delayed or prevented from performing partially or at all by the Force Majeure Event), and, provided that notice has been given in terms of Clause 20.1, shall not be liable for any delay or failure in the performance of any of its obligations in terms of this Agreement or losses or damages whether general, special or consequential which the other Party ("the Unaffected Party") may suffer due to or resulting from any such delay or failure; or
22.2.2. The Affected Party shall give written notice to the Unaffected Party at the earliest possible opportunity in writing of the occurrence of the event constituting the Force Majeure Event, together with details thereof and a good faith estimate of the period of time for which it shall endure;
22.2.3. At all times whilst a Force Majeure Event continues, the Parties shall meet at regular intervals to discuss and investigate, and if possible, to implement other practical ways and means to overcome the consequences of such a Force Majeure Event, with the objective of achieving the import and intent of this Agreement without unreasonable delay.
22.3. The Affected Party shall use all reasonable endeavours to mitigate the effects of the Force Majeure Event on its ability to perform under this Agreement and to terminate the circumstances giving rise to a Force Majeure Event as soon as reasonably possible and upon termination of the event giving rise thereto, shall forthwith give written notice thereof to the Unaffected Party.
23. DISPUTE RESOLUTION
23.1. In the event of there being any dispute or difference between the Parties arising out of this Agreement and/or any Subscriber Agreement, the said dispute or difference shall on written demand by FireStream be submitted to arbitration in Sandton in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
23.2. Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
23.3. The Parties agree that the written demand by FireStream to the dispute in terms of clause 21.1 that the dispute or difference be submitted to arbitration is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.
24. NOTICES AND DOMICILIA
24.1. The Customer selects as its domicilia citandi et executandi the physical addresses, fax numbers and email addresses as specified in the Service Request Form for the purposes of giving or sending any notice provided for or required under this Agreement.
24.2. FireStream selects as its domicilia citandi et executandi the physical addresses, fax numbers and email addresses as specified below for the purposes of giving or sending any notice provided for or required under this Agreement.
Physical Address:943 Livingstone Falls Crescent, Waterfall Country Estate, Gauteng
Marked for attention of "The Managing Director".
provided that a Party may change its domicilium or its address for the purposes of notices 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 5 (five) business days after receipt of the notice of the change.
24.3. All notices to be given in terms of this Agreement will be given in writing and will:
24.3.1. be delivered by hand or sent by telefax or email;
24.3.2. if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and
24.3.3. if sent by telefax or email during business hours, be presumed to have been received on the date of successful transmission of the telefax or email. Any telefax or email sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day.
24.4. Notwithstanding the above, any notice given in writing, and 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 this clause 24.
25. APPLICABLE LAW AND JURISDICTION
25.1. This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
25.2. The Parties hereby consent and submit to the non-exclusive jurisdiction of the South Gauteng High Court, Johannesburg in any dispute arising from or in connection with this Agreement.
26.1. This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no warranty, undertaking, representation, term or condition relating to the subject matter of this Agreement (not incorporated in this Agreement) shall be binding on either of the Parties. This Agreement supersedes and replaces any and all agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
26.2. No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
26.3. No waiver, suspension or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
26.4. Any provision or clause of this Agreement which is or becomes unenforceable for any other reason whatsoever, shall (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 shall remain of full force and effect.
26.5. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
26.6. Neither this Agreement nor any rights or obligations hereunder may be ceded, delegated or assigned by the Customer without the prior written consent of FireStream.