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General Terms and Conditions pertaining to XStore GNU/Linux Software Support Agreements and standard services
The General Terms and Conditions of XStore ("Vendor") only apply to agreements between the Vendor and its customers ( Client(s) ).
XStore Software Level Agreements ( “SLA” ) can be executed with various specifications in accordance with the following tables:
1. Support Options
Service Types Linux Solutions Support Data Storage Support Network Security Support Server Support Backup software Support
2a. Call options General Turnaround times
Call initiation by phone 0900-1800 Mon-Fri next business day Call initiation by email 24 hours x 7 days 48 hours
Maximum number of contact partners (Client side) 3
Number of Calls limited or unlimited as per SLA type
On-site Support Options
Software configuration/repair/installation yes Hardware configuration/repair/installation yes Consultation / Project Design yes
Remote Support Options
Remote Services Software/Hardware Diagnosis Yes Software Repair Yes System configuration Yes
Supported hardware and software listed in Service and Support Agreement, as well as specific response times ( TTR )
Exceptions
1. Public holidays ( South Africa ). 2. Exceptions are made for critical issues at XStore's discretion - the Client will be notified of these 3. XStore closure dates will be communicated to the Client 4. XStore Software Support Agreements are executed for a term of 12 months and can be made use of for a number of calls during the term based on the SLA type chosen - these can be varied pursuant to negotiation with the Client
Place of business
Edgemead Cape Town South Africa 7441
2b. Standard Service Level Agreement Types
2.1 Bronze - Rxxx / per month - 3 Telephonic / Email tickets - 1 On site visit
2.2 Silver - Rxxx / per month - 6 Telephonic / Email tickets - 2 On site visits
2.3 Gold - Rxxx / per month - 9 Telephonic / Email tickets - 3 On site visits
2.4 Platinum on request
3 Execution
3.1 The Vendor will initiate an agreement by sending a Support Services Agreement form to the Client 3.2 The Vendor makes the description of services, the order form, and his General Terms and Conditions available to the Client by e-mail, regular mail, or as a download. 3.3 The Client shall fill in and sign the order form and send it back by regular postal mail, email or fax. This constitutes the offer to execute a Support Agreement. The Client shall use only the order form of the Vendor 3.4 The Agreement is executed by means of the order confirmation of the Vendor via email, fax or postal service 3.5 Use of XStore service automatically assumes acceptance by the client of the T&C herewith listed
4 Distributions 4.0 XStore Software Support Agreements require the Client to use any of the following distributions (hereinafter Distribution Vendor(s) ):
4.1 XStore Software Support Agreements require the Client to exclusively use packages of any of the supported GNU/Linux Distributions outlined in section 4.0 or packages provided by XStore
4.2 and keep these up to date ("standard installation"). If this is not the case, an XStore Software Support Agreement is based on the prerequisite that the Client informs the Vendor about any deviations/modifications of the standard installation and the Vendor accepts the modified system configuration in writing.
4.3 The Client shall inform the Vendor without delay about any modification of the standard installation that the Client performs following the submission of the offer. In case the Vendor does not accept the modification for the Support Agreement in writing or in case the Client does not communicate the modifications, the Vendor is entitled to terminate the Support Agreement for extraordinary reasons.
5. Support Request The executed support agreement entitles the Client to submit a support request to the Vendor by phone or fax, and email ( always required ). The permitted scope of the Support Agreements comprises the following three defined support levels.
Level & Scope
Level 1 Registration and verification of customer data Check whether the problem is a known problem and a solution is available Basic user support by phone or e-mail for difficulties with common operations on Linux desktop workstations and servers, and network/storage devices as covered by a Services and Support Agreement
Level 2 Reproduction and localization of previously unknown errors Support of the system administrator for difficulties that arise in connection with the system administration
Level 3 Bug fixing or security updates for the packages included in the scope of delivery, as far as this is technically feasible and necessary.
6.Scope of the Contractual Services of the Vendor 6.1Pursuant to the SSA, the Vendor is under the obligation to respond by phone, fax or e-mail to support requests from the Client within the contractually agreed turnaround time in accordance with the tables presented in Section 2b ("services") or per SSA. The scope of the individual services the Vendor is required to perform is regulated conclusively in the following Sections 6.2 to 6.14. The turnaround ( response ) time (“TTR”) is calculated pursuant to Section 7 of the General Terms and Conditions. 6.1a A Support request is initiated by the Client sending an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it , an sms to 0824168696 or a fax to 086 538 5810 – or a combination of these 6.2 The support language is English. 6.3 In the events indicated in Section 6.3, the Client may be contacted by a staff member of the Vendor within the contractually agreed turnaround time, in case this is necessary in order to obtain additional support related information or in order to submit a solution proposal. 6.4 No guarantee is issued and no responsibility is assumed for the solvability of specific problem. 6.5 The submission of a solution or a notice that a support request can not be solved may not necessarily occur within the contractually agreed turnaround time ( These periods are known as TimeToRespond (“TTR”) and TimeToFix (“TTF”)). The Client can not request the compliance with a specific solution time or restoration time. XStore does not supply a TimToFix. 6.6 The services of the Vendor are limited to support for specific problems that arise with the retention of the usability of the GNU/Linux Server, network and storage device. In case a service description is referred to in the support request, this will complement the conclusive service scope. 6.7 Furthermore, the contractual services of the Vendor are limited to the support for specific problems that arise in connection with the services, programs and packages listed in the overview at the XStore website and subsections. 6.8 The contractual services for independent server products from the range of Business Solutions are limited to the basic set-up (installation and configuration) of the product(s) and the due ( standard ) utilization of the product as per vendor installation and configuration procedures. 6.9 All kinds of programming tasks that exceed the extent necessary for handling the problem and maintaining the system as well as the development of complex IT concepts, feasibility studies, and similar tasks (consulting) are excluded from the services of the Vendor unless specified by extended agreement. Likewise, the exclusive development and provision of specific software adaptations (patches) for the Client is excluded. 6.10 The Vendor is entitled to perform the services for the Client directly by means of his own staff or indirectly by means of representatives of XStore. 6.11 XStore does not provide support for, warranty or guarantee hardware unless specifically stated in a Support Agreement 6.12 The Vendor is not obligated to perform priority support if the Client does not have an SLA
7.Turnaround Time ( “TTR “) 7.1The Vendor exclusively performs his services within the following call windows. Support Level Standard Service Type Linux Server, network and storage device support General Call reception and turnaround times Call reception by phone 0830 to 1730 Monday-Friday Call reception by email 24 hours x 7 days Response time next business day Exceptions are made for critical issues at XStore's discretion. 7.2 The TTR is the period between the reception of the support request and the response of the Vendor, interrupted by the periods outside the call windows. Periods that are outside the reception hours for phone calls are not included in the calculation of the turnaround time. The scope of the response is conclusively defined in Section 6. 7.3 The calculation of the TTR is demonstrated by means of an example based on the Standard Support level (turnaround time 8 hours). The turnaround time for a support request submitted by phone on Monday at 1700 hours expires on Tuesday at 1600 hours. The turnaround time for a support request submitted by electronic media (email) on Monday at 1900 hours expires on Wednesday at 1900 hours. 7.4 The vendor can not be held responsible for non-response to support initiation calls/emails from the Client due to natural and unnatural infrastructure problems eg. Power failures, Cell, network, fax and PSTN problems – it is the Clients' duty to make sure the Vendor has received the support request. 7.5 The Vendor will not guarantee a TTR for Clients without an SLA – times provided for a TTR are approximate
8.Remuneration and Manner of Payment 8.1The prices are quoted ex headquarters of the Vendor ("place of performance"). 8.2 The prices are net prices in Rands and are payable without any further deductions 8.3 Subscription-based fees for XStore GNU/Linux Software Support Agreements are payable by the Client through electronic transfer or cash, on receipt of an invoice for work performed 8.4 Incident- and project-based fees for XStore GNU/Linux Software Support Agreements is payable by the Client through electronic transfer or cash, on receipt of an invoice for the work performed. At maximum, 7 days from receipt of invoice are allowed for payment – this is a courtesy and is not a given. Additional terms are available on request. 8.5 Payment on subscription-based SLAs is required in advance of the month of coverage 8.6 If the Client is in default of payment, the Vendor may withhold his delivery and claim default interest amounting to 2 percent points over the base interest rate pursuant to applicable South African law. The day that the amount is credited to the account of the Vendor will be deemed the day of payment. The right to claim damages in excess of this amount is reserved. 8.7 If a due commercial assessment of the Vendor reveals circumstances that give rise to justified doubts regarding the creditworthiness of the Client, including facts that existed at the time of the execution of the Agreement but were not or did not have to be known to the Vendor, the Vendor is entitled to discontinue the operations in connection with current orders and request advance payment or the issue of acceptable securities for services still to be performed, regardless of any other legal rights that the Vendor may have. If the said securities are not issued by the end of a reasonable extension period, the Vendor may rescind the Agreement and claim compensation for damages. 8.8 The Client may only set off payments against claims that are undisputed or legally established. 8.9 The requirement to be on site ( outside of Gold/Silver SLA ) will attract a site visit charge of R395.00 within a 25km range of place of business unless otherwise specified in an SLA. 8.10 An additional charge of R95 will be levied for site visits between 26km and 100km of place of business 8.11 XStore reserves the right to request payment on outstanding invoices from the end user should an intermediary, to whom services have been sub-contracted by XStore on behalf of the end user, default on payment. 8.12 A minimum charge of 1 hour of labour will be levied in the case where a resolution to a support request is not met by the Vendor 8.13 Where the Vendor sub-contracts services via an intermediary, the intermediary is responsible for payment under the above terms, notwithstanding their payment arrangements with the end-user 8.14 If a client requests priority support, while not having an SLA, a discretionary charge of 15% of normal pricing may be levied
9.Delivery Times 9.1Compliance with the agreed turnaround times is only possible if the Client delivers all necessary documents in time and complies with the agreed payment conditions and other obligations of the Client. If these requirements are not met in due time, the deadlines are extended accordingly; this does not apply if the Vendor is responsible for the delay. 9.2 If non-compliance with the deadlines is caused by events of force majeure, such as mobilization, war, civil unrest, or similar events such as strike, lockout, government intervention, energy and resource shortages, transport deficiencies, operational obstructions for which the Vendor is not responsible, such as power failures, defects in the Internet, damages caused by fire or water, damages to the electronic system, telecommunication network or computer failures, and defects in machines, the deadlines will be extended accordingly. 9.3 The Client only has the right to rescind under the condition that he grants the Vendor a reasonable grace period for performing the delivery, with a note indicating that he will reject the delivery following the expiry of the period, and the period expires without success. 9.4 On request of the Vendor, the Client will declare within a reasonable period whether he rescinds the contract due to the delivery delay or insists on the delivery.
10.Term and Termination 10.1The term of an XStore GNU/Linux Support Agreement is twelve months, unless a different agreement has been made in writing. 10.2 Standard termination of agreements requires a 30-day notice period and must be provided via postal service or email ( confirmation of receipt or DSN is required ) 10.3 Extraordinary termination is only possible for important reasons and requires any reasonable notice. 10.4 Terms are not applicable to per-incident or project-based engagements unless specified however termination of services still requires any reasonable notice via postal service or email
11.Liability for Defects 11.1 In case an error in the GNU/Linux software product is detected within the scope of the support provided for a specific problem, the Client can only demand the elimination of the software error within the scope of the general provision of a solution, e.g. when an updated software package is made available by the Distribution Vendor. Any additional liability for defects is excluded. 11.2 The aforesaid regulation also applies to all troubleshooting measures, including bug fixes that the Vendor makes available for eliminating errors. 11.3 The Client shall submit complaints regarding defects in writing and without delay to the Vendor. 11.4 In the event of complaints, the Client may withhold payments to an extent that is in reasonable proportion to the encountered defects. The Client may only withhold payments when making complaints that are clearly justifiable. If the complaint is not justified, the Vendor is entitled to reclaim the expenses he incurred as a result of work done in clarifying the complaint, from the Client. 11.5 The Vendor shall be granted a reasonable period for the supplementary performance pursuant to Sections 11.1 and 11.6. If the Vendor is not given this opportunity, he will be free from liability for defects. 11.7 The Vendor will not be held liable or responsible for any data loss or result thereof as part of its interaction with clients and their systems – this includes the process of data recovery. 11.8 It remains the Client's duty and responsibility to check the integrity of all backup solutions and the resulting backup data; the Vendor will not accept liability as a result of loss of data due to misconfiguration of backups, natural loss of data, data loss due to hardware or software failure, or any other means/manner by which data may be lost or damaged. 11.9 While the Vendor takes every care ( and in good faith ) to make sure systems are as robust as possible, no warranty or guarantee is supplied by the Vendor to the client, in terms of the reliability of a system or the usability thereof. 11.10 While the Vendor will exercise the utmost level of attention in seeking to resolve an issue, the Vendor will not provide guarantees for such resolution, nor will the Vendor assume responsibility for such resolution.
12.Breach of Protective Rights, Other Breaches 12.1Provided nothing else has been agreed, the Vendor will perform the delivery in the Republic of South Africa free of commercial protective rights and third-party copyrights ("protective rights"). 12.2Claims of the Client are excluded if the Client is responsible for the breach of protective rights. 12.3 Furthermore, claims of the Client are excluded if the breach of protective rights was caused by specific conditions of the Client, a utilization that the Vendor could not foresee, or due to the fact that the delivery was modified by the Client or deployed together with products not delivered by the Vendor. 12.4 The Client is aware that the service also contains Open Source software ("OSS"). Due to the specific nature of OSS, which is developed by a large number of persons not affiliated with the Vendor, any liability of the Vendor for the breach of protective rights or other defects of title regarding OSS is excluded. 12.5 Claims of the Client against the Vendor due to defects of title of a different nature than those regulated in Section 12 or additional claims are excluded.
13.Inability to Deliver 13.1 In case events of force majeure substantially change the economic importance or the contents of the delivery or have a profound effect on the operations of the Vendor, the contract shall be amended appropriately in good faith. If this is not feasible from the economic point of view, the Vendor is entitled to rescind the contract. If the Vendor wants to make use of his right to rescind, he shall notify the Client about his decision without delay as soon as he realizes the impact of the event, even if the Vendor and the Client had initially agreed an extension of the delivery time.
14.Exclusion and Limitation of Liability 14.1Indemnification claims of the Client due to any legal grounds, including but not limited to breaches of the contractual obligations or prohibited actions, are excluded. 14.2 The Client is aware that the delivery also contains Open Source software ("OSS"). Due to the specific nature of OSS, which is developed by a large number of persons not affiliated with the Vendor, any liability of the Vendor for the breach of protective rights or other defects of title in connection with OSS is excluded. 14.3 To the extent that the liability of the Vendor is excluded or limited pursuant to Section 14, this also applies to the personal liability of the Vendor's employees and other agents
15.Cession The Client may only cede rights from this Agreement following the written approval of the Vendor.
16.Confidentiality 16.1The information and data that the Client provides to the Vendor are not regarded as confidential, unless the contrary is explicitly agreed in writing. 16.2 The parties shall not forward any documents, know-how, information and other technical documentation - no matter what the carrier medium may be - that was received from the other party within the scope of the Agreement ("information") to third parties or utilize them for any purpose other than the contractual purpose. The information must be protected against unauthorized access or utilization. In addition to any other rights, the party can demand the information to be returned in case the other party breaches these obligations. 16.3 The obligation pursuant to Section 16.2 commences with the initial receipt of the information and ends 12 months after the end of the Agreement. 16.4 The obligation pursuant to Section 16.2 does not apply to information that is publicly known, or that was already known to the receiving party prior to the receipt without any obligation to maintain confidentiality, or that is subsequently communicated by a third party that is entitled to forward them, or that is developed by the receiving party without using confidential information of the other party, or that is applicable to documentation relating to the usage of or information regarding FOSS software. 16.5 The obligation pursuant to Section 16.2 does apply to information that is sensitive and private to either party, and that is not publicly available
17.Place of Venue The exclusive place of venue - also for claims from cheques, notices and bills - is South Africa.
18. Applicable Law The substantive law of the Republic of South Africa exclusively applies. The United Nations Convention on the International Sale of Goods dated April 11, 1980, is excluded from application.
V2.9 – 1 November 2011 E&OE
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