1.1 The CONSULTANT is providing the USER with a service.
1.2 The USER wishes to employ the services of the CONSULTANT to supply, maintain and support their computer hardware and software.
1.3 The CONSULTANT is hereby appointed, with effect from the commencement date, to supply maintain and support the USER’S computer hardware and software.
2.1 The clause headings in this Agreement have been inserted for convenience only and will not be taken into consideration in its interpretation.
2.2 Where an expression defining any subclause will, for the purposes of the clause of which that subclause forms a part, bears a meaning assigned to the words and expressions in that subclause.
2.3 This agreement constitutes the whole agreement between the parties and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter or this agreement, and the parties will not be entitled to rely, in any dispute regarding this agreement, on any terms, conditions or representations not expressly contained in this agreement
2.4 The validity and interpretation of this agreement will be governed by the Laws of the Republic of South Africa.
2.5 Any reference to the singular includes the plural and vice versa.
2.6 Any reference to natural persons includes legal persons and vice versa and references to any gender includes references to the other genders and vice versa.
2.7 The parties shall mean the USER and CONSULTANT jointly.
3. OBLIGATIONS OF THE CONSULTANT
3.1 The CONSULTANT’S service engineers will familiarise themselves with the USER’S sites.
3.2 The CONSULTANT will formally notify the USER in case of infrastructure changes at the CONSULTANT.
3.3 The CONSULTANT will keep the USER informed of new products, services and methodologies that could improve the effectiveness of the USER’S operations and services.
3.4 Trained consultant engineers will be available within the hours specified in Section 5 to provide support.
3.5 A service report is available via the customer portal after support work has been undertaken at the USER’S site.
3.6 No work (excluding regular maintenance) will be carried out by the CONSULTANT without the USER’S knowledge or authorisation.
4. OBLIGATIONS OF THE USER
4.1 The USER undertakes to inform the CONSULTANT of any faults or problems in or in respect of the hardware/software as soon as possible after any such fault or problem is discovered and it will provide the CONSULTANT’S personnel with reasonable access to all equipment associated with the computer system on which the software is operating, upon arrival of the personnel of the CONSULTANT at the premises of the USER.
4.2 The USER is responsible for providing access for the CONSULTANT’S engineers to perform the services, when required.
4.3 The USER will make available, upon request, relevant software configurations, equipment layout and network settings.
4.4 The USER will provide feedback on the CONSULTANT’S service and reports if requested.
4.5 The USER will ensure that the equipment is well cared for and suitably housed in the correct type of environment for computer systems.
4.6 The USER is to allow the CONSULTANT’S engineers to carry out repairs or adjustments at the USER’S site.
4.7 The USER to allow the equipment to be taken to the CONSULTANT’S workshop for such repairs that cannot be carried out at the USER’S premises.
4.8 The USER is to notify the CONSULTANT of any configuration changes whether they are hardware or software orientated.
5. CONSULTANT’S HOURS OF SERVICE
5.1 The CONSULTANT’S support will be available from Mondays to Fridays during office hours calculated from 08h30 to 17h00, unless otherwise agreed in writing.
5.2 The CONSULTANT’S after hours support will be available on Saturday’s, Sundays and Public Holidays and at times not stated in paragraph 5.1
6. INCREASED WORKLOAD
In cases where the USER experiences an increased workload, required additional support or contingencies, the issues will be discussed and negotiated with the CONSULTANT’S Account Manager.
7. SERVICE BASIS
7.1 The Consultant will perform the remedial maintenance designed to rectify any errors as logged with the CONSULTANT’S on the specified hardware / software components.
7.2 A report will be available via the customer portal to the USER after any work has been completed.
8. SERVICE LEVEL
8.1 The USER will receive preferential call out’s once a critical fault has been reported and CONSULTANT engineer will arrive during office hours on site.
8.2 Expected response time for technicians in regard to, server or critical infrastructure faults are within 4 hours and next business day for critical desktop faults.
8.3 The CONSULTANT’S engineer will determine within 1 (one) hour of arriving on site what the most probable cause of the fault is and the course of action to be taken to restore the system to full functionality in the shortest possible time. Should it be hardware related problem, the USER will be informed and requested to make a decision whether to repair the existing component or order a replacement unit.
8.4 The minimum time for a call-out is recorded as an hour for the first hour and then in increments of 30 minutes.
8.5 The minimum time for remote support is recorded as 30 minutes and then in increments of 15 minutes.
9. COMMENCEMENT AND TERMINATION
9.1 This agreement will commence on the signature of both parties and will continue in force until terminated on a month-to-month basis (cancellable on 30 days written notice).
9.2 In addition to any rights of termination which either party may have as common law, this agreement may be terminated if the USER fails to make any payment on the due date.
9.3 Upon termination of this agreement for any reason whatsoever, and in addition to the rights granted to it herein the CONSULTANT will be entitled, without prejudice to its other rights or remedies aforesaid, to remove all copies of the unpaid software or hardware already installed in the system and suspend all deliveries of and any further installation of software, hardware or services in terms of this agreement. The USER will be liable for all costs incurred by the CONSULTANT in connection with the recovery of the software, hardware or of money owing by the USER to CONSULTANT, which costs will be paid on an attorney and own client scale.
10.1 The liability of the CONSULTANT for faulty execution of services rendered in terms of this agreement, as well as all damages suffered by the USER whether direct or indirect, as a result of the renting of such services, will be limited to the CONSULTANT rectifying, within a reasonable time and free of charge.
10.2 This liability is completely excluded if the USER attempts to correct or allows third parties to correct or attempts to correct such faulty execution services or any damages arising there from without the prior written approval of the CONSULTANT.
10.3 Any other liability on the part of the CONSULTANT arising from any cause whatsoever is specifically excluded.
10.4 Without limiting the generality of the aforegoing, the CONSULTANT will not be liable for any delay, failure, breakdown, damage or injury caused by:
Hardware / Software:
10.4.1 Hardware, software or support supplied by or obtained by the USER without the consent or knowledge of the CONSULTANT;
10.4.2 Hardware or software modified by the USER or any third party not authorised to do so in terms of this agreement;
10.4.3 In no event will the CONSULTANT be liable to the USER for loss of profit or for incidental, special or consequential damages arising out of or in connection with the services rendered by the CONSULTANT in terms of this agreement or the delivery, installation, servicing, performance or use of hardware or software.
11. DARKREALM TECHNOLOGY EQUIPMENT AND MAINTENANCE
11.1 The USER is responsible for any equipment owned by the CONSULTANT while it is located in the user’s premises and the USER will only use the CONSULTANT’s equipment and any associated software in accordance with manufacturer’s instructions and/or the CONSULTANT instructions and/or software license. Furthermore the CONSULTANT shall not be liable for any damage or loss resulting from a fault in any kind within the hardware or software supplied.
11.2 Where it is necessary for the CONSULTANT to install and/or maintain the service at the users premises, the user will provide CONSULTANT such access as is reasonably required.
11.3 All risk of loss or damage regarding all CONSULTANT’s equipment on the USER’s premises will reside in the user for an amount equal to the full replacement value of the CONSULTANT’s equipment. The equipment is and shall remain CONSULTANT’s property at all times.
11.4 All vendor supplied equipment shall carry that vendors warranty and guarantees where applicable.
This agreement does not apply to:
13.1 replacement of or repairs to covers, paintwork, or refurnishing of the equipment;
13.2 repairs or replacements necessitated by accident, fire, lightning, water damage, or any natural disasters, riots, civil disorders, acts of terrorism or similar acts;
13.3 damage during the transportation of the equipment by the USER;
13.4 damage caused by faulty external power sources;
13.5 the external cleaning of covers, keyboards, video screens, or any other equipment.
14. CONFIDENTIALITY AND RESTRAINT
14.1 Each part acknowledges that all material and information which has or will come into the possession of the other in connection with this agreement or the performance of the obligations hereunder consist of confidential proprietary information, which, if disclosed to third parties, will be damaging.
14.2 Both parties therefore agree to hold such material and information in the strictest confidence, not to make use thereof other than for the performance of the obligations under this agreement, to release it only to employees requiring such information and not to disclose it to any other party.
14.3 Neither party will use the name of the other party for publicity releases or advertising or for other promotional purposes, without securing the prior written approval of the other party thereto.
14.4 The parties agree that the provisions of this clause will survive the termination of this agreement.
15. CHARGES AND PAYMENT
15.1 The services rendered in terms if this agreement and for on demand and training services requested by the USER, the CONSULTANT will charge the USER a monthly maintenance charge, and on demand service charge and a training charge in accordance with the CONSULTANT’S scale of charges in force at the time.
The CONSULTANT reserves the right to vary any one or more of its scales of charges on 30 (thirty) day’s notice to the USER by the submission to the USER, of the new scale charges.
15.2 The charges of the CONSULTANT set out in the current CONSULTANT’S scale of charges are exclusive of value added tax and other duties or taxes not specifically mentioned, all of which will be paid by the USER.
15.3 The current CONSULTANT’S scale of charges include only the standard charges of CONSULTANT as set out therein and the cost of any material supplied additional to that set out in the CONSULTANT’S scale of charges or rendered necessary by the order of any Government, telecommunications or Municipal authority will be paid separately by the USER.
15.4 The CONSULTANT’S maintenance charges are payable by the USER monthly within 7 (seven) days of presentation of an invoice from the CONSULTANT in respect of the current month, unless agreed in writing.
15.5 The USER undertakes to pay compound interest monthly on all overdue payments due to the CONSULTANT at a rate of PRIME + 5% per annum.
15.6 The USER will not be entitled to withhold payment of any amount payable to the CONSULTANT to satisfy any claim of the USER arising from this or any other agreement between the USER and the CONSULTANT, nor will the USER be entitled to offset such amount against the amount payable to the CONSULTANT in terms of this or any other agreement.
16. SETTLEMENT OF DISPUTES
Should any dispute arise between the parties in connection with the interpretation or application of the provisions of this agreement, or its breach or termination or validity of any document furnished by the parties pursuant to the provisions of this agreement, that the dispute will, unless resolved between the parties, be referred and be determined by arbitration in terms of the provisions of the Arbitration Act No. 42 of 1965.