TERMS & CONDITIONS

1.1. Statement of Intent

The purpose of this Support Service Level Agreement (SLA) is to formalize an arrangement between Compfix Data Limited (hereinafter, the Provider) and The Client (Hereinafter, the Subscriber), for the provision of automated off-site backup services (DataBank) by the Provider to the Subscriber, thereby ensuring a safe, robust and high quality of online backup service is maintained throughout the service period. The objectives of this agreement are detailed in Section 1.3 of this agreement. This agreement is contingent upon each party knowing and fulfilling their responsibilities and generating an environment conducive to the achievement and maintenance of targeted service levels.
1.2. Interpretation of Terms

Data – Subscriber’s backed up information in an encrypted format.
Data Backup Service – the act of obtaining copies of data from Subscriber’s computers so that they will be preserved in case of equipment failure or other catastrophe DataBank – Online backup services.
Backup Server- storage equipment dedicated to backup and restoration of data
Data Centre- centralized facility installed with power redundancy and air conditioning used to house backup servers and associated components, such as telecommunications and storage systems which, for purposes of this Agreement, shall be at the registered physical address of the Provider.
Backup Agent – backup software installed in Subscriber’s computers for data transfer to Provider.
Gateway Infrastructure–Third party physical hardware e.g. fibre switches and cables involved in provision of this service
Operating systems patches and updates– software updates done on the backup server through normal scheduled maintenance to improve functionality.
1.3. Objectives

i. To create an environment which is conducive to a co-operative relationship between the Provider and the Subscriber to ensure a secure, robust and high quality online backup service is delivered and maintained throughout the entire service period
ii. To document the responsibilities of all parties taking part in the Agreement;
iii. To define the commencement of the agreement, its initial term and the provision for reviews;
iv. To define in detail the service to be delivered by the Provider and the level of service this can be expected by the Subscriber, thereby reducing the risk of misunderstandings;
v. To institute a formal system of objective service level monitoring ensuring that reviews of the agreement are based on factual data;
vi. To provide a common understanding of service requirements/capabilities and of the principals involved in the measurement of service levels; and
vii. To provide for all parties to the Service Level Agreement a single, easily referenced document which caters for all objectives as listed above.

2. The Service
This section describes in details the services that are to be delivered to the Subscriber by the Provider.

2.1. The provision of remote backup centre

The core part of the service is the provision of a remote backup centre to where the Subscriber can backup their data. This remote backup centre will be located inside a secure data centre where all standard data centre facilities, including redundancy and backup power supply, 24-hour professional monitoring & surveillance and controlled access to the premises at International House, are provided. The Provider will setup a primary backup account inside the remote backup centre to provide online backup services to the Subscriber. The primary backup account will use a Redundant Array of Independent Disks (RAID) system to introduce redundancy to the data storage system. To provide an extra level of protection, the Subscriber’s backup data stored on the primary backup server will be replicated to another independent secondary backup server (also utilizing RAID) periodically. In the event when the primary backup server goes down or becomes unavailable for whatever reasons, there is always a secondary backup server available to pick up the primary server’s role. Subscriber’s backup data are still inside the remote backup centre.
2.2. Backup data to the remote backup centre

To backup data stored inside a computer to the remote backup centre mentioned above, a backup software, DataBank Enterprise (hereinafter, DataBank-ENT), must be installed to the computer. With the assistance of the Provider, the Subscriber will install DataBank-ENT onto computer/s that contains data to be backed up to Providers Data centre. The DataBank-ENT software will on a scheduled basis be collecting Subscriber’s data, encrypting and send it to Provider’s Data Centre via secured internet connection. With scheduling feature enabled, DataBank-ENT will backup Subscriber’s data to the remote backup centre automatically.
2.3. Backup Activities Reporting

For each completed backup job, the backup server will send a backup report, with a detailed listing of all files that have been backed up within the backup job, to the Subscriber’s designated point of contact/s by email. This report will show all unexpected errors encountered during the backup operation. If any error has happened to the backup operation, the Subscriber will be notified within an hour from scheduled time and will be able to correct the problem in due course. Also, if a scheduled backup job has not been run as scheduled time, a missed backup report will be sent to the Subscriber’s designated point of contact by email to report this problem.
2.4. Network Connectivity

The Subscriber shall require stable internet connectivity to enable DataBank-ENT to transfer data to the Provider’s Data Canter. The Provider will not be responsible for Subscriber’s connectivity but will provide guidelines for such solution.
2.5. A dedicated support

The Provider will issue the Subscriber a dedicated telephone number to call when assistance is required. The Provider will make sure that a technical support representative will always be available to take the Subscriber’s calls made within the Provider’s office hours (Mon-Fri 08:30 – 18:00, Sat 09:00-15:00) Service Standard This section describes the standard of the services that are to be delivered to the Subscriber by the Provider.

2.6. Availability of the Services

The minimum acceptable level of uptime ratio for the services for any particular month shall be 95%.
DataBank service will be deemed unavailable if it cannot be reached from the Provider’s backup servers (*excludes downtime for operating systems patches and updates on Providers backup servers which will be done through scheduled maintenance as detailed by 3.2).
DataBank service shall not be deemed unavailable (without limitation) in the event of any of the following:
(a) Failure of the Subscriber’s connection to Provider’s Data Centre Infrastructure (e.g. via the public internet or Provider’s own network);
(b) Malfunction of Subscriber’s own computing systems upon which the backup agent is installed (including hardware, operating system or local software), including non-availability due to computer configuration issues;
(c) Gateway infrastructure failure.
2.7. Scheduled maintenance

Scheduled maintenance shall mean any maintenance performed within the backup centre. Subscriber will be notified 3 days in advance. Notice of Scheduled Maintenance will be provided to Subscriber’s designated point of contact by email. Unavailability caused by scheduled maintenance does not count towards to the down time provided that such Scheduled maintenance is carried out when the Subscriber’s stores and offices are not open for business, is done expeditiously and does not at any rate last for more than 3 hours.
2.8. Acceptable resolution time guideline

Table 3.3.2 shows the guideline for problem resolution time for problems at different priority levels and a simple definition of different priority levels. When a problem arises, the Provider is expected to resolve the problem within the guideline stated below.

 

Table 3.3.1 – Problem resolution time guideline

Priority Level Descriptions Resolution Time
1 Total Disruption of the ServiceWhole site is down or server breakdown (the subscriber cannot operate due to unavailability of Data) Within 8 hours
2 Major Inconvenience-All servers and core applications are running but part of the data is required. Within 12 hours
3 Minor InconvenienceInvolves of change of settings or enhancement to the backup service Within 24 hours

2.9. Guaranteed response time

The Provider shall assign a dedicated person to handle the Subscriber’s call at any given time. The Subscriber can simply call the assigned telephone number to contact a technical support representative at any given time without any delay.
2.10. Escalation of problems

If there is any urgent problem that needs to be brought to the attention to the management of both the Provider and the Subscriber after office hours, the following contact numbers shall be used to contact the personnel in charge of the services.

Table 3.3.2 – Emergency Phone Number

Contact Person: Technical Director
Contact Number: +254 775 504 936
Contact Person: Customer service
Contact Number: +254 775 504 936

Service tracking and reporting

This section describes the mechanism used to track the quality of service delivered by the Provider.
3.1. Service Tracking

To ensure the Service is delivered up to a certain level of standard, the Provider will use a pre-defined checklist which shall be determined by the backup schedules to make sure the technical staffs are performing all pre-defined tasks for the Subscriber as expected and emailed to the Subscriber’s point of contact. These emails will be used as a track record of all tasks that have been performed by the Provider. The pre-defined checklist shall be in the form of the Backup Activities Reporting as more particularly described in Clause 2.3 hereinabove.
3.2. System Monitoring and Metric Reporting

The success of service level agreements depends fundamentally on the ability to measure performance comprehensively and accurately so that credible and reliable information can be provided to customers and support areas on the service provided. Service factors must be meaningful, measurable and monitored constantly. Actual levels of service are to be compared with agreed target levels on a regular basis by both the Provider and the Subscriber. The target service levels shall be determined by the backup settings. In the event of a discrepancy between actual and targeted service levels, both the Provider and the Subscriber are expected to identify and resolve the reason(s) for any discrepancies in close co-operation. The Provider will perform the service level monitoring. Reports will be produced as and when required and forwarded to the Subscriber’s contact. The System Monitoring and Metric Reporting shall be done on a daily basis vide e-mails and or any other agreed means.
4. Changes to Services Level Agreement

This section describes how changes to this Service Level Agreement shall take place.

4.1. Procedure for changes

The amendment of the agreement would take place through an addendum to this agreement and the recording of that addendum in an Appendix of this agreement. There will be an opportunity on a quarterly basis to make adjustments to this Service Level Agreement. The Provider and the Subscriber should work together to make changes at that time.
4.2. Changes by mutual agreement

Any amendment to the Terms and Conditions of this agreement would require the written approval of the Provider and the Subscriber.

4.3. Termination

6.3.1 Either party may terminate this agreement without penalty provided that the party terminating shall give the other party 30 days written notice of intent to terminate.

6.3.2 Either party shall be entitled to terminate this Agreement immediately in the event that:

(a) The other is in material breach of any provision of this Agreement which is:
(i) Not capable of remedy; or
(ii) is capable of remedy but which is not remedied within {14} days of notice being served requiring the breach to be remedied;
(b) A petition is granted by a competent court or an order is made or resolution passed for the other to be wound-up;
(c) The other is dissolved (other than for the purpose of reconstruction or amalgamation whilst solvent);
(d)A petition is granted, notice of intended or actual appointment is presented or an order is made by a competent court for the appointment of an administrator;
(e) The other enters into an arrangement or compromise with its creditors (or any class of them) or takes steps to obtain a moratorium or protection from its creditors (or any class of them); or
(f) A distress, execution of or other legal process is levied over the whole or part of the other’s undertaking or assets.

 

6.3.3 On termination or expiry of this Agreement, the Provider shall promptly deliver, or procure the prompt delivery, to the Subscriber of all Subscribers’ data, materials, documentation (including all copies in every form and media) in its power, possession or control and shall not retain a copy/copies thereof.

5. Appendix A – General Terms and Conditions
5.1. Services Period

This Agreement shall take effect on subscription date and will remain so until either party decides to terminate. Termination of this agreement shall require two months written notice before the next subscription quarter.
5.2. Provider’s Undertakings

The Provider undertakes and agrees to: (i) Store the Subscriber’s backup data (“Data”) securely at all material times;
(ii) Provide the data backup services conscientiously, with all due care, skill, accuracy and attention, with special regard to time and with the highest standards expected of an experienced provider of services of the nature provided by the Provider under this Agreement;
(iii) Provide the data backup services in accordance with all relevant laws and good industry practice.
(iv) Provide the data backup services with special regard to time and the manner of provision of the services;
(v) To safeguard the interests of the Subscriber in connection with the data backup services at all times.
5.3. Data Confidentiality

The Provider agrees that it shall and shall procure that any of its employees that may deal with the Data shall:
(a) Deal with the Data solely for the purpose of providing the data backup services and to fulfil the Provider’s obligations in this Agreement and for no other purpose. This restriction applies during the Term of this Agreement and thereafter;
(b)Comply with all applicable laws relating to the provision of data backup services including privacy laws;
(c)Comply with the following data requirements in respect of the Data:
(i) Deal with the Data strictly in accordance with this Agreement;
(ii) Take reasonable steps to ensure the reliability of those of its employees, agents and subcontractors who may have access to the Data and use all reasonable endeavours to ensure that such persons have sufficient skills and training in the handling of data.
(d)Not disclose the Data to any third party in any circumstances;
(e)Cooperate with the Subscriber to enable them to monitor compliance with the obligations set out in this Agreement and, upon reasonable notice, permit the Subscriber and/or its nominated agent to have access to any premises where the Data is stored in order to ascertain compliance with this Agreement; and
(f) On request from the Subscriber, provide an up-to-date copy of the Data in the format, on the media and within any reasonable time periods required by the Subscriber.
5.4. Data ownership

The Provider acknowledges and accepts that it is shall deal with the Subscriber’s Data solely as a service provider and that, as between the parties, the Data and all intellectual property rights in the Data (including any intellectual property rights in the Data) belong to the Subscriber absolutely.

5.5. Indemnity

The Provider shall indemnify the Subscriber against any costs, claims, expenses, damages, liabilities arising out of a breach of this Agreement by the Provider. Similarly the Subscriber shall indemnify the Provider against any costs, claims, expenses, damages, liabilities arising out of a breach of this Agreement by the Subscriber.
5.6. Confidentiality of Agreement

Each party shall treat as confidential the content of this Agreement and all information relating to the business and/or affairs of the other party which it may receive or derive as a result of this Agreement and shall not disclose to any person, or allow any other person to use, such information save with the prior written consent of the other party.
5.7. No Assignment

The Provider shall not assign or transfer, or purport to assign or transfer, any of its rights or obligations under this Agreement without the prior written consent of the Subscriber party. Any purported assignment or transfer in violation of this provision shall be null and void.
5.8. Waiver

No waiver or forbearance by either party, whether express or implied, in enforcing any of its rights hereunder shall prejudice or affect its ability to enforce such rights or any of its other rights hereunder at any time in the future. No waiver shall be effective unless in writing and signed by the waiving party. For the avoidance of doubt it is agreed that a waiver of a right on one occasion shall not constitute a waiver of the same right in the future.
5.9. Severability

If any provision of this Agreement shall be held to be void or unenforceable by any court or other authority which decision is binding upon any party to this Agreement, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining provisions of this Agreement. The parties agree to use their best endeavours to replace such unenforceable provision in a manner which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision.

6. Governing Law

This Agreement shall be governed by and construed in all respects in accordance with Kenyan law .

6.1. Resolution of Disputes

(i) The parties shall use their best efforts to settle amicably all disputes which may arise at any time touching upon the construction of this Agreement or on the rights and liabilities of the parties.
(ii) If any dispute between the parties cannot be settled amicably pursuant to Clause (i) above it shall be referred to the decision of a single arbitrator to be agreed upon between the parties or in default of agreement within fourteen (14) days to be appointed at the request of either party by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators.
(iii) Such arbitration shall be conducted in Nairobi, Kenya in accordance with and subject to the provisions of the Arbitration Act 1995 or any statutory modification or re-enactment thereof for the time being in force.
(iv) The award of the Arbitrator shall be final and binding upon all parties to the dispute. The provisions of this clause shall not preclude any party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending decision of the arbitration.

6.2. Notices

Any notices to be served on either of the party by the other shall be sent by hand delivery or registered post to the address at the beginning of this Agreement or to the last known address of the party. Any notice sent by registered post shall be deemed to have been duly served four (4) days after posting and proof of posting shall be proof of service. Any notice delivered by hand will be deemed to have been served at the time of delivery.
6.3. Headings

Headings contained in this Agreement are for reference purposes only and shall not be incorporated into the Agreement and shall not be deemed to be any indication of the meaning of the clauses or sub-clauses to which they relate.
6.4. Cost and Charges

The subscriber agrees to pay a quarterly recurring fee for the subscribed storage quota (exclusive of VAT) which shall be paid in advance from the subscription date.
6.5. Entire Agreement

This Agreement is intended as the complete statement of the terms of the agreement between the Subscriber and the Provider relating to subject matter hereof. This agreement supersedes all previous proposals, oral and written, and all negotiations, conversations or discussions hereto between the parties relating to this Agreement. The Parties hereto, acknowledge that they have read the terms and conditions of this Agreement, that they understand all such terms and conditions and that they agree to be bound thereby.