SERVICE LEVEL AGREEMENT
Entered into by and between:
SMS4Info (Pty) Ltd
REGISTRATION NUMBER: 2000/024505/07
Trading as BE VISIBLE, herein represented by
_____________________________, ID number __________________________, duly authorised
(Herein referred to as “BE VISIBLE”)
With chosen domicilium citandi et executandi
A1 Rapid Falls Value Centre
P.O Box 19227
herein represented by _____________________________, ID number _____________, duly authorised,
(Herein referred to as “the Client”)
With chosen domicilium address:
Which addresses the parties hereby elect as their respective for the delivery and serving of any notice and/or pleadings.
WHEREAS the Client is desirous to appoint BE VISIBLE (Google Partner MCC nr 7840337673) to perform the services as set out in this agreement,
And whereas Be Visible is willing to deliver the services at the fee/consideration as agreed upon.
Now therefore the parties agree that:
“Article” – Website content page containing photos and text.
“Access Control” – the control and allowance of BE VISIBLE staff and Client side members to gain access to the website. The Client permits BE VISIBLE to maintain the content of the website. Where access is required for managerial and administrative reasons that will be provided by the Client, Be Visible will grant the Client access to the relevant data as required by the Client upon Client’s insistence.
“Client Side Members” – Representatives and Employees of the Client who requires access to
the website for practical and managerial reasons.
“Be Visible Staff/Staff” – All employees of Be Visible, including temporary staff and sub-contractors for the purposes of this contract as well as any person performing a task reasonably necessary for the completion of services rendered in terms of this SLA, for which this person is remunerated by Be Visible.
“Browser” - Software used by a device to view webpages.
“CMS” – Content Management System, allowing for the maintenance and updating of content via a user interface.
“Database” – Tables in which a website can store and retrieve data.
“Downtime” - A state of unavailability during which a website cannot be accessed.
“Domain”-The reserved name and address that is assigned to a website by means of registration, by which that website can exclusively be reached on the internet.
“Firewall” - is a Software based security framework that is designed to prevent unauthorized access to or from a private network, hereby preventing malicious attacks from unauthorized internet users aiming to access private users connected to the internet/intranet networks.
“Framework Support and Maintenance” – The checking, verifying and updating of a website framework’s security integrity and compatibility.
“Graphic Design” – The creation of artwork for the use of print advertisements or
“HTML” – HyperText Mark-up Language – the “language” that websites are comprised of.
“Module” – a Component that independently plugs into a website and can be purchased as a separate plugin for the performance of a specialized task. Examples include Facebook and weather display modules.
“SLA” – Service Level Agreement, referring to this agreement.
“SEO”– Search Engine Optimization refers to the continued compliancy to search engine ranking rules and requirements.
“The Third party entity” – Should the Client represent a business or an organisation on behalf of which the Client instructs BE VISIBLE to perform SEO services, this business or organisation will be referred to as “The Third party entity”.
“Website Content Maintenance” – The updates of the content and graphics of a website.
“Website Hosting” - a Service on which websites are served to visitors. These hosts have allocated amounts of disc space and traffic allowances.
“Website Traffic” - Visitors to a website generate traffic – every time an image, page or content is viewed, amounts of data is sent and received by visitors to a website and bandwidth is used.
“Work”– Any work done by any employee/s of BE VISIBLE, including temporary staff and sub-contractors for the purposes of this contract as well as any person performing a task reasonably necessary for the completion of services rendered in terms of this SLA, for which this person is remunerated by BE VISIBLE
“Workspace” – Online collaboration and document control system that allows for task assignment and communication between staff and BE VISIBLE.
NOW THEREFORE THE PARTIES AGREE THAT:
It is hereby agreed that the support and services to be rendered by Be Visible to The Client will comprise of the following terms:
$12.1 FRAMEWORK SUPPORT & MAINTENANCE
All CMS driven sites are based on a legacy framework that needs constant maintenance and updating as new exploits are revealed and new features become available. These updates are communicated to us from the publishers of the software and are updated on all CMS sites hosted by Be Visible. We also install a firewall on the website that is updated on a weekly basis and routine check-ups are done to ensure the site remains secure at all times. Browser compatibility patches are also loaded to ensure the website displays correctly on all devices and new versions of their browsers.
$12.2 WEBSITE HOSTING
The website must be hosted on Be Visible’s hosting platform in order to ensure smooth implementation of the development process and on-going maintenance process. Be Visible guarantees a 99% uptime of the domain, unless Hetzner the host service provider has downtime which will be communicated to you the Client beforehand. Any downtime due to updates will be discussed with the Client prior to implementation. Downtime of the website will be conveyed via a message on the webpage if needed. Hosting of the website is based on the package requirements for the framework and expansion or traffic on the website may affect this at any time of the contract period. If the website exceeds its traffic allowance we will notify the Client and offer him an upgrade package. Al date exceeding the current package is billed separately at current rates per Mega Byte over Quota.
$12.3 WEBSITE DOMAIN RENEWAL
Every 12 Months the website name is renewed to update the .co.za records and to serve as a reference to search engines if the domain still exists. This is a manual process that is done with a request that is sent to the developer via email to confirm the on-going existence of the domain. If not accepted the domain will be flagged a suspended/deleted and will become available again for registration, if this process takes place the website will not be accessible and hosting will not be possible. The annual renewal fee will be divided into the monthly SLA and charged monthly. As long as the website maintenance and hosting is done by Be Visible the renewal is charged in this manner to prevent any irregularities from taking place.
$12.4 WEBSITE & DATABASE BACKUPS
Regular backups must be made to ensure the website can be restored to its latest state if necessary. Snapshots of the website will be made 22:00 every night and full database backups will be made once a month and stored on our data server. Snapshots are image files generated for rollback purposes and backups. The snapshot of the next day will always be replaced by the previous day’s snapshot. All website articles are contained in the database.
$12.5 DATABASE MAINTENANCE
Database Maintenance will be done on a regular basis to ensure all data captured into the database is saved correctly. Be Visible does not take any responsibility for the quality of data stored.
This SLA service will be rendered on a monthly basis for a minimum of 12 months thereafter the service will continue on an annual basis. All pricing and costs will be reviewed after the first 12 months and on a 12 month basis thereafter.
Price increases will be at the discretion of the service provider and will be communicated with the Client.
Please note database hosting fees are dependent on the size of the database and can change at any time as do interface hosting depending on the traffic of the site. Unpaid collections will result in a temporary suspension of services and must be rectified within 5 days after failure, if unsuccessful suspension will be permanent.
$12.6 LEVEL OF SERVICE CONDITIONS
Data Module changes and source code changes will be done within 5 working days and updates will be placed on the workspace regarding commencement progress and completion. All custom designed code remains copyright Be Visible but will be covered in full under the SLA for as long as the SLA is active.
All Content updates done by the Client will be supported by this SLA any page & article configurations will be supported by Be Visible and scheduled article maintenance will be done to ensure previous editing sessions does not cause any irregularities and corrupts new content.
All content must be provided electronically via the workspace to ensure quality. All new database content will be quoted on before implemented.
$12.7 ACCESS CONTROL
Be Visible read & write access to the back end of the website via an admin interface to access articles in the website. The Client can plan and collaborate in regard to website updates and changes. The Client will instruct Be Visible by means of tasks or discussions assigned to Be Visible’s team via email. Be Visible will then be able to advise on these changes and implement the accordingly. Be Visible will remain fully responsible of all content management changes made by Be Visible on the website.
$12.8 MODULE LICENSING & COSTS
Some Free modules may come paid for modules if the publishers change their licensing agreements. This will affect pricing of the SLA and will be communicated to The Client beforehand. License fee options ensure that when new versions of the modules are available Be Visible can implement them on the Client’s website at no additional charge.
3. SERVICES PROVIDED BY BE VISIBLE:
3.1 Be Visible will provide the acquired services to the Client to an industry acceptable level.
3.2 Be Visible exerts no control over the policies of search engines with respect to the content that they accept, neither will this be the case in future. Consequently, Be Visible will not be liable for changes in directories and/or search engines and the effects thereof on the Client’s webpage.
4. UNDERTAKING BY THE CLIENT:
4.1 In order to enable Be Visible to provide professional services as listed in clause 2 of this Agreement, the Client agrees to the following:
4.1.1 The Client will provide Be Visible with all support and assistance required to fulfil Be Visible’s obligations in terms of this agreement. This includes, but is not limited to: administrative information, permission to communicate directly with any third parties (for example your web designer, if necessary), access to website traffic statistics, the authorisation to use Client’s and Third party Entity’s logos, pictures, trademarks, associated images and content and the provision of additional content in case of the need thereof for the purposes of Be Visible’s services as set out in clause 2 (two) of this Agreement.
$15. INTELECTUAL PROPERTY
All creations remain the property of Be Visible. Be Visible retains the Copyright in all right to use artwork and literature created in advancing the profile of Be Visible and to be recognized for artwork created by Be Visible. Be Visible shall be free to reproduce use, disclose display exhibit, transmit, perform, create derivative works, and distribute any item from your Web Page unless specifically agreed otherwise. Furthermore, Be Visible shall be free to use any ideas concepts know-how or techniques acquired tin construction of sites for any purpose whatsoever, including by not limited to developing, manufacturing and marketing product and other items incorporating such information unless specifically agreed otherwise. Be Visible observes Privacy Laws and Guidelines to personal data.
$16. SEARCH ENGINE OPTIMIZATION
6.1 Be Visible does guarantee at least 1(one) keyword / phrase on the 1st page of Google within 4 -5 months or your complete money back on SEO fees paid.We perform basic search engine optimisation according to current best practice, and only if agreed upon in the clients contract. If Search Engine Optimization has been agreed as part of the web design contract the client must be aware that Be Visible is not responsible for ongoing web site promotion unless otherwise agreed upon. Should the client require the site to be promoted on an ongoing basis a separate contract must be agreed. The order in which websites are ranked in the natural search results is controlled by the search engines. While during the web design we can optimize your site initially for this by making it search engine friendly.
6.2 In order to enable Be Visible to provide professional SEO services, The Client agrees to the following:
6.2 The Client takes responsibility to inform Be Visible as to which keywords it wishes to rank on.
6.3 The Client will provide Be Visible with all support and assistance required to fulfil Be Visible’s obligations in terms of this agreement. This includes, but is not limited to: administrative information, permission to communicate directly with any third parties (for example your web designer, if necessary), access to website traffic statistics, the authorisation to use Client’s logos, pictures, trademarks, associated images and content for SEO purposes and the provision of additional content in case of the need thereof for SEO purposes.
$17. CROSS BROWSER COMPATIBILITY
By using current versions of well supported content management systems such as “Wordpress” “Joomla” and others, Be Visible endeavour to ensure that the web sites we create are compatible with all current modern web browsers such as the most recent versions of Internet Explorer, Google Chrome and Firefox. Third Party extensions, where used, may not have the same level of support for all browsers. Be Visible will appropriate to substitute alternative extensions or implement other solutions, on a best effort basis, where any incompatibilities are found.
$18. WEBSITE AND SOFTWARE DESIGN
Website, Software and Applications designed and created by Be Visible for Clients should be treated as Trade Secrets and remain the property of Be Visible. Such creative word or the information contained within them must not be passed to third parties of publicly disseminated without prior written authorisation from Be Visible. This includes but not limited to technical features, functionality of the applications, graphic design, user interface, pricing information, any code or original artwork developed by Be Visible or our contractors including HTML mark-up, Flash and multimedia including audio and video, database design and development, data collection and web based administration are licensed to the Client for use in their own single website. It cannot be copied, reused or resold without the written permission of Be Visible. Original graphics created for use in the proposed website cannot eve re-use in any other website or for other promotional media including brochures, press or other advertisements without our express written permission and/or
additional fees. The licensing for any side server programs and scripts including written in Java, jQuery, HTML, HTMLS, PHP, Laraville, JSON API’s, SOAP API’s requires the program, scripts and data to be held on a web server run by Be Visible. Such scripts are strictly the copyright of Be Visible and all rights and reserved. They may not be edited, copied or transferred to another server without express written permission of Be Visible.
$19. WARRANTY BY CLIENT AS TO OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks or any other material it supplies to Be Visible and/or includes in the Client’s website or web applications. The conclusion of a contract between Be Visible and the Client shall be regarded as a guarantee by the Client to Be Visible that all such permissions and authorities have been obtained and that the inclusion of such material on the Website or in the software would not constitute a criminal offence or delict. By agreeing to these terms and conditions, the Client hereby indemnifies Be Visible from any claims of legal action relating to the content of the Clients website or software.
$110. TRANSFER OF OWNERSHIP TO CLIENT OR THIRD PARTY
Once Be Visible has received full payment of all outstanding invoices and the work has been approved by the Client in accordance with the Approval work clause. Transfer of ownership will occur by way of a Transfer of Ownership Agreement. The Client will be granted ownership to use the website and its related software and content for the life of the website. Be Visible assumes all content supplied by the client is free of copyright, and Be Visible takes no responsibility whatsoever for using copyrighted material on the site or in the software that has been supplied by the Client. Ownership can be transferred to another party if that party has bought or acquired the business from the Client. Written notification must be made to Be Visible if the ownership has to be transferred. All services by Be Visible will end upon transfer of ownership unless otherwise agreed.
$111. APPROVAL OF WORK BY CLIENT
On confirmation of the Work, the Client will be notified and have the opportunity to review it. The Client should notify Be Visible, in writing, of any unsatisfactory points within 48 hours of receipt of such Work. Any of the Work which has not been reported in writing to Be Visible as unsatisfactory within the 48 hour review period will be deemed to have been approved. Once approved or deemed approved, the Work cannot subsequently be rejected, and will therefore be deemed to be completed.
$112. REJECTED WORK BY CLIENT
On rejection of the Work within the 48 hour review period and the Client will not approve subsequent Work performed by Be Visible to remedy any points reported by the Client as unsatisfactory, and Be Visible considers that the Client is unreasonable in his repeated rejection of the Work, the contract will be deemed to have expired and Be Visible can take any legal measures to recover both payment for the completed Work and reasonable collection and legal fees.
$113.1.1 The Client agrees that Be Visible works on an hourly rate specified by the quote.
$113.1.2 Be Visible will provide a quotation to the Client before initiation of the services. Should the Client agree and accept the quotation, the Client will be liable to pay the monthly instalment as agreed.
$113.1.3 Should overtime work be required from Be Visible, the Client will be charged at 1.5 x the hourly rate.
Be Visible will send a invoices to the email provided by the Client. The frequency of the invoices will be at the 20th day of each month. The Clients invoices will reflect all transactions, outstanding balance and minimum payment that will be deducted from your account. The Client can obtain Statements on request, alternatively through the Client portal by login into https://books.zoho.com/portal/bevisible
$115. DEBIT ORDER
15.1 By entering into the Agreement and signing this Agreement, the Client agrees that Be Visible will debit your bank account (debit order) for your monthly instalments as well as any other additional services.
15.2 The Client agrees that Be Visible may track your bank account and re-present the payment instruction when you have sufficient fund available in the event that you do not have sufficient funds available at the debit order date. Failure to make payment will authorize Be Visible to decommissioning of the website and associated services.
15.3 The Client hereby authorize Be Visible to issue and deliver payment instructions to the bank for collection against the Client’s abovementioned account, at the Clients above-mentioned bank or any other bank or branch to which the Client transfers his/her account, on condition that the sum of such payment instructions will never exceeds the Client’s obligations as agreed to the this Agreement, and commencing on the commencement date and continuing until this authority or agreement is terminated by the Client, giving notice in writing of not less than 20 working days and such notice shall be delivered by prepaid registered post or delivered to the chosen domicilium address of Be Visible.
15.4 The individual payment instructions hereby authorized must be issued and delivered as follows:-
15.4.1 On the 25th or 1st day of each and every months commencing on _______/________/__________ from
Bank ________________ Account No: ___________________ Branch: ______________
Account Name: ___________________ Branch Code: ____________________ Account Type: _______________
15.4.2 In the event that the payment day falls on a Saturday, Sunday of recognized South African Public Holiday, the payment day will automatically be the very next ordinary business day.
15.5 The Client agrees and acknowledges that the withdrawals hereby authorized will be processed through a computerized system provided by the South African Banks. The Client also agrees and understands that the details of each withdrawal will be printed on the Clients bank statements. Each transaction will contain a number, which must be included in the said payment instruction and if provided to the Client, should enable the Client to identify the Agreement. A payment reference will be added to this agreement before the issuing of any payment instruction.
15.6 The Client agrees and acknowledge that he will not be entitled to any refund of amounts which Be Visible has withdrawn while this authority and agreement was still in force, if such amounts is legally owning to Be Visible.
15.7 The Client agrees and acknowledges that all payment instructions issued by Be Visible shall be treated by the Clients bank as if the instructions had been issued by the Client personally.
15.8 The Client agrees and acknowledge that this authority and agreement has been cede to Be Visible’s Debit Order Bureau.
$116. DEFAULT PAYMENT POLICY
If payment has not been received by due date, Be Visible has the right to suspend all ongoing work for the Client, until such time that full payment of the outstanding balance has been received. Be Visible reserves the right to deactivate the Clients website in case of non-payment. Be Visible will send out an email notification informing the Client to make payment within 7 (seven) days, if the deadline is missed after the 7days. Be Visible has the full right to deactivate the website. The website will be reactivated after the payment obligation is met. In the event that the account exceeds 30 days, a reactivation fee of R 1 000-00 will be payable.
17.1 Termination of this Agreement by either party is to be preceded with 20 working days’ written notice.
17.2 The Client agrees that a period of 7 working days will be granted to Be Visible to remove all Intellectual Property.
17.3 Upon the expiry of the 20 day working period referred to in clause 17 of the Agreement will automatically terminate.
17.4 All services implemented in accordance with clause 2 will be removed after the 20 working day notice period has expired in the event that there are still monies owing to Be Visible. A full backup will be made and kept for 12 months.
17.5 The right to terminate this Agreement in terms of clause 17 may only be exercised on the condition that the party electing to do so has met all of the terms of the Agreement.
If the Client breaches any of the terms, Be Visible may, without prejudice to any other rights that Be Visible may have and without notice to the Client:
(i) claim immediate payment of all outstanding charges due to Be Visible,
(ii) terminate or suspend the Client's use of any or all of the Services,
(iii) terminate its relationship with the Client or
(iv) list the Client with any credit bureau, Internet service provider list, or the South African Fraud Prevention Service and- the Client expressly consents to this.
In all instances, Be Visible may retain all Services Fees already paid by the Client and recover all of its costs associated (including legal costs on an attorney and own client scale) with the Client's breach, whether incurred prior to the institution of or during legal proceedings, or if judgment has been granted, in connection with the satisfaction of the judgment.
19. FORCE MAJEURE
19.1 On the happening of a Force Majeure Event, any delay or failure in performance or resulting breach by Be Visible will not be a breach of the Be Visible Hosting Terms by Be Visible, nor will Be Visible be liable.
19.2 For purposes of this clause, a "Force Majeure Event" means any act of God, of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot, blockage, embargo, sanctions, epidemics, act of any Government or other authority, compliance with Government orders, failure of any supplier of electricity, including Eskom, and telecommunications infrastructure or telecommunications lines provided by any third party, including the Telkom Limited group of companies, or any circumstances of like or different nature beyond Be Visible's reasonable control.
20. THE CLIENT AS REPRESENTATIVE OF “THE THIRD PARTY ENTITY”
20.1 I,_______________________, duly authorised representative of the Client herein, declare that the Client has the authority to request the services from BE VISIBLE, as are requested in this Agreement. I declare that the Client has the authority to request such services on behalf of the Third party entity on strength of a legally binding agreement between the Client and The Third party entity. Should the relationship between the Third party entity and the Client as it is conveyed to BE VISIBLE be fraudulently conveyed as such and damages be incurred as a result, BE VISIBLE will not be considered liable for such damages.
$121. NATIONAL CREDIT ACT
The parties hereto confirm that this transaction does not fall within the ambit of the National Credit Act 34 of 2005.
$122. CONSUMER PROTECTION ACT
The parties hereto confirm that their rights and obligations in terms of the Consumer Protection Act, 68 of 2008, have been perused by themselves and are clearly understood in as far as they are applicable to this transaction. The parties enter into this agreement voluntarily with the applied knowledge of the Consumer Protection Act.
$123. DOMICILIUM CITANDI ET EXECUTANDI
The parties hereby elect as their respective addresses the following addresses for the delivery and serving of any notice and/or pleadings:
BE VISIBLE: A1 Rapid Falls Value Centre
P.O Box 19227
Or such other address within the Republic of South Africa as the parties may indicate in writing.
The Client hereby consents to the jurisdiction of the Magistrate’s Court to adjudicate any legal dispute that may arise between them from the terms and conditions of this SLA. Should either party be compelled to resort thereto as a result of breach of the terms if this Agreement, that party will be entitled to collect damages as well as costs on an Attorney-and-Client scale and interest thereon from the other party.
The parties hereto agree that this SLA is the full and final Agreement and that any variations thereof shall be valid only when reduced to writing and signed by duly authorised representatives of both parties. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of the Agreement shall still remain valid and in effect.
SIGNED ON THIS THE ____ DAY OF ________ 2014 AT ___________________.
ON BEHALF OF BE VISIBLE CLIENT
IN THE PRESENCE OF WITNESSES: