Overview

THIS AGREEMENTis made on this ….. day of …………………..

BETWEEN

MTN NIGERIA COMMUNICATIONS LIMITED, a company duly registered in accordance with the provisions of the laws of the Federal Republic of Nigeria, with offices at Golden Plaza, Falomo, Ikoyi, Lagos (hereinafter referred to as “MTNN”; which expression shall where the context so admits include its successors-in-title and assigns), of the one part.

AND

BT Educatio Services, a ICT Solution provider  having its office at8B Ademola Street, Off Awolowo Road, Ikotyi, Lagos, Nigeria(hereinafter called “the Subscriber” which expression shall where the context so admits or requires include its representatives, successors-in-title and assigns), of the other part

Both MTNN and the Subscriber are hereinafter jointly referred to as “the Parties”.

WHEREAS   

a.            MTNN is duly licensed by the Nigerian Communications Commission on behalf of the Federal Government of Nigeria to provide unified telecommunications services within the Federal Republic of Nigeria;

b.           The Subscriber is An Insurance Company

c.             MTNN has proposed aData Hosting service, to the Subscriber who wishes to utilise same from MTNN;

d.             The Parties now wish to have their understanding reduced to writing in the manner hereinafter appearing.

NOW THEREFORE THE PARTIES HEREBY AGREE AS FOLLOWS:

1.         INTERPRETATION AND DEFINITIONS

1.1.1   The clause headings in this Agreement have been inserted for convenience only and will not be taken into consideration in its interpretation.

1.1.2   Words and expressions defined in any clause shall for the purpose of this Agreement bear the meaning assigned to such words and expressions in that clause.

1.1.3   Any reference to singular includes plural and vice versa

1.1.4   Any reference to natural persons shall, where the context so admits, include legal persons and references to any gender includes reference to the other gender and vice versa.

1.1.5     Any provision in the Definitions Clause, which is a substantive provision conferring rights or imposing obligations on a party, shall be given effect as if it were a substantive provision in the body of the Agreement.

1.2.   DEFINITIONS

In this Agreement, unless inconsistent with or otherwise indicated by the context, the following words and expressions shall have their ordinary meaning  and such other meaning as may be assigned to them in this clause and Agreement.

1.2.1    “Agreement” means this Agreement, all Schedules, Appendixes or Annexure(s) to it;

1.2.2    “Working Day” means any day other than Saturdays, Sundays or public holidays declared by the Federal Government of Nigeria from time to time;

1.2.3    “Confidential Information” shall, for the purpose of this Agreement include, without limitation, any technical, commercial, scientific information, know-how, trade secrets, business ideas, processes, machinery, designs, drawings, technical specifications, records, studies, discussions and data in whatever form, disclosed to or assessed by the parties during the course and subsistence of this Agreement.

1.2.4    “Consequential Loss” means any loss or anticipated loss of profit, loss or anticipated loss of revenue, business interruption, loss of use of any Equipment, loss of any contract or other business opportunity and any other indirect loss of a similar nature;

1.2.5    “Documentation” includes but is not limited to instruction books, technical pamphlets, catalogues, advertising material, specifications and all other materials related to the products and services of a party, embodied either by hard copy or in electronic form;

1.2.6       “Intellectual Property Rights” means all trademarks and patent rights, copyrights, know-how and any other intellectual property rights howsoever called and confidential information including the right to apply for a patent in any jurisdiction;

1.2.8    “Parties representatives” means the person or persons whom either party may authorize in writing to act on its behalf;

1.2.9       “Taxes” means all taxes including but not limited to income tax, withholding tax, value added tax, sales tax or analogous tax, stamp duties, tariffs, fiscal charges and other dues or any similar tax-related charges or levies of whatsoever nature imposed, levied or assessed by any governmental authority within the Territory in accordance with present or future laws and/or regulations in the Territory

2            COMMENCEMENT AND DURATION

Notwithstanding the date of signing of this Agreement, this Agreement shall take effect from the _______ day of _________2013 (“Commencement Date”) and shall remain in force for a minimum period of One (1) year except otherwise terminated by either party in accordance with the provisions of this Agreement (hereinafter referred to as the Initial Term) and shall be renewable for further terms of one (1) year upon the mutual agreement of Parties.

3.                      SCOPE OF SERVICE

3.1                   Services

3.1.1           The following service elements are covered by this Agreement:

·         Operating system as supplied by MTNN

·         Support applications

·         Operating environment as supplied by MTNN

·         Network connectivity within the Data Centre as supplied by MTNN

·         Back-up services that form part of the hosted service as supplied by MTNN (upon request)

·         Security Management

·         System health check-up (Gold and Silver Only) that looks at the overall performance of the hosted system (s) and database(s) to identify potential issues and how they might be mitigated

3.2                   Service Management

MTNN is fully committed to providing quality and measurable service to the Subscriber based on the agreed level defined in this Agreement.  On selecting and agreeing to pay for a service package, MTNN will commit to provide the managed service as defined below.  The option to mix and match the various element service levels is not available.  For clarity the only options are Gold, Silver or Bronze and this applies to all elements defined.

NOTE:  Response and fix times given apply to working hours defined for each service level (Gold, Silver and Bronze).  For the sake of clarification if an incident is reported on a Gold service then response times are as stated, if an incident on a Silver service were reported immediately prior to the start of the non-service day and cannot be fixed before the start of the non-service day and the target hours have not elapsed then MTNN will make best endeavours to complete before the start of the next working day, but is not obliged to do so.  Therefore the clock on time spent is suspended at the start of the non-working day and restarted at the start on the next working day.  Incident support for Silver is based on a similar ‘best endeavours’ basis, but MTNN reserves the right to stop the clock at the end of the working day and restart at the beginning of the next working day.

3.2.1.         Service Options/Packages

3.2.2.         Hours of Support and Availability

* Environment availabilityexcludes any downtime agreed for essential maintenance or change

3.3                   Systems Management

3.4                   Incident Management

3.5 Connectivity Management– ONLY APPLICABLE IF NETWORK ACCESS TO THE DATA CENTRE IS PROVIDED BY MTN.

MTNN assumes professional and technical responsibility for its performance, which will be in accordance with recognized professional standards employed by Service Providers performing work of comparable nature.

The Subscriber and MTNN understand that maintenance of the Link shall require Planned Outages and such Planned Outages shall not be regarded as down time for the purposes of measuring service availability in accordance with the timeline defined under “change management”; provided that MTNN shall provide the Subscriber with at least seven (7) working days’ notice of such Planned Outage and such outage shall not persist for more than [RM1] [] hours. Where notice as prescribed hereunder is not given or the outage persists for more than [] hours, such outage shall be treated as downtime for the purposes of measuring service availability.

In the event of an emergency outage, MTNN shall take all reasonable steps to restore the Service or provide alternative links to the Subscriber and shall inform the Subscriber immediately of any such outage. The period of such emergency outage shall be regarded as downtime for the purpose of measuring service availability.

MTNN will carry out a ping test on the link to ensure that latency does not exceed 80ms and commission will be deemed to be completed when the circuit is proved to be able to carry the Subscriber’s traffic and shall be evidenced in a completion certificate to be signed by both Parties.

3.5.1.         Availability

Target Monthly Link performance is defined below:

3.6 Change Management

3.6.1.         Client Change Management

Requests management services are available during normal business hours (8am-5pm – week days). A complete, authenticated request will be considered received once it has been logged into the request management system and assigned. A request is not considered complete unless all information has been provided and appropriate authorizations and all prerequisite activities are complete.  MTNN reserves the right to reject any change on feasibility or security grounds

3.6.2.         Change Request Management

This is MTNN’s obligation to the Subscriber in the event of a change at MTNN’s instance.

3.7 Backup &Restore Services

1               

2               

3               

4               

5               

5.1               

5.2               

5.3               

3.8                Security Management

3.8.1.         Standard Security Service

MTNN provides protection to the Subscriber’s resources at all levels of data classification. Firewalls are implemented and managed, as necessary, to provide separation and restriction between environments.

3.8.2.         Additional Security Service

Virtual Private Network (Encryption) and Security Information Reporting, can be provided to securely transmit data. Intrusion detection will be implemented at key points in the network to alert on and restrict malicious traffic.

3.9 SLA Reporting

MTNN will provide an SLA report once per month that will show compliance to agreed service standards. Any failure attributable to MTNN and not covered under Force Majeure will result in compensation being applied on a quarterly basis and such shall be applied on the next quarterly payment following the failure period.

The SLA Target is given according to the Service Level (Gold, Silver and Bronze).

The table below indicates the applicable compensation based on the SLA target achieved for the month.

3.10 Support Procedure

3.10.1.       Issue Logging

The issue must first be logged or reported through MTNN’s Enterprise Help Desk or Dedicated Customer Support Officer or Account partner assigned to Customer. The Help Desk will then analyze and prioritize the issue based on impact. All critical issues with severity 1 takes priority over general support issues logged. SLAs will be followed according to the severity or priority of the issue.

The Enterprise Help Desk can be contacted via email ICTSupportDesk@mtnnigeria.net;or phone on short dial 216

3.10.2.       Escalations

If an issue was logged or reported and no response has been given within the response times defined or if a response is required sooner than the set response times, the matter can be escalated according to the escalation path below.

3.11 Responsibility

3.11.1. Subscriber’s Duties & Responsibilities

 
• The Subscriber will report all incidents to MTNN through the Service Desk

     

• Troubleshooting of system related issues as a result of fault on any component of the Subscriber’s infrastructure [B&I5]

  

• Supply all reasonably-required information regarding a requested change.
• Grant necessary access on the system to MTNN resources where applicable
• Coordinate all changes pertaining to the hosted service

3.11.2. MTNN Duties & Responsibilities

• Meeting response times associated with service related incidents
• Generating quarterly reports on Service Levels
• Appropriate notification to the Subscriber for all scheduled maintenance and changes
• Facilitation of all service support activities involving incident, problem, change, release and configuration management.
• MTNN will provide Network Intrusion Detection that examines traffic as it passes defined points on the network to see if it matches “signatures” of known malicious activity. This applies to network intrusion detection as well as host intrusion detection.

4. CHARGES AND PAYMENT TERMS

4.1 The  Subscriber agrees to pay or cause to be paid to MTNN the prices indicated in the table below for the services provided in accordance with the terms of this Agreement:

All charges are exclusive of VAT

4.2.  The Monthly Recurring Charges for the service is payable quarterly-in-advance

4.4   The Monthly and Annual Subscription Charges for the Service as set out in the pricing schedule are subject to increment or decrease as determined by inflationary rates and price adjustments as may be applicable within the Federal Republic of Nigeria, provided that MTNN shall inform the Subscriber in writing at least 30 days in advance of any change in the Charges and  any increase shall be subject to the agreement of both parties. Notwithstanding, the terms of this clause, no increment shall arise within the first year of this Agreement.

4.5    MTNN shall invoice (by way of invoices, i.e. monthly recurring charges and, where applicable, such tax amount authorised by the law) all charges hereunder, monthly in advance and the Subscriber shall pay all invoices submitted hereunder thirty (30) days from date of receipt of the invoices (Payment due date).Where the Subscriber requests that MTNN should not suspend service in the absence of payment as at when due,The Subscriber agrees to pay interest on demand on any Charges and any other invoiced amount that is unpaid more than thirty (30) days after the Payment due date, at NIBOR rate, plus one percent (1%), compounded monthly, not to exceed the maximum rate permitted by law.  The Parties agree that where an invoice is disputed, the Subscriber shall pay the portion of the amount on the invoice which is undisputed in accordance with the manner set out in the pricing schedule and where the disputed portion of the invoice is resolved in favour of MTNN, the Subscriber shall be liable to pay that sum within 7 days of such resolution after which interest shall become payable as set out in this clause.

5. OBLIGATIONS AND WARRANTY

5.1 Where applicable, The Subscriber warrants to MTNN that it has obtained from the appropriate regulatory bodies, all licenses and approvals required for any activity in connection with which it has acquired the Data Hosting service from MTNN and that they are subsisting.

5.2 MTNN warrants that the WORK shall be performed in a safe and professional manner to the required standard and safety, using good working practices by properly skilled, experienced and suitable personnel and that all installations shall be free from defects and fit for their intended purpose.

5.3 If connectivity is required, the obligation of MTNN to install and/or maintain the cables and other equipment required to provide service to the Subscriber shall be affected by and is subject to the Subscriber granting to MTNN and any of MTNN’s representatives, free and uninterrupted access to the service address.

6. UNDERTAKING

6.1 MTNN, undertakes to observe and comply with these terms and conditions as well as all applicable rules and regulations relating to the telecommunications industry for the time being in force in Nigeria including but not limited to the Nigeria Communications Act, 2003.

7.  EXCLUSIONS AND RESTRICTIONS 

The guarantees set forth in this document shall not apply in the event that the Services are unavailable or impaired due to any of the following (which shall be referred to collectively as “Exclusions”):

(a) Interruptions or times of service degradation of the services that have been provisioned but not accepted by Subscriber or services for which orders have been processed within the last 10 business days;

(b)             Interruptions or times of service degradation caused by the negligence, error or omission of Subscriber or others authorized by Subscriber to use or modify Subscriber’s service;

(c) Interruptions or times of service degradation due to failure of power at Subscriber premises or failure or poor performance of Subscriber premise equipment;

(d) Interruptions or times of service degradation during any period in which MTNN or its agents are not afforded access to the provided infrastructure, provided such access is reasonably necessary to prevent a degradation or to restore service;

(e) Interruptions or times of service degradation during any period when MTNN has posted on the MTNN Web site or communicated to Subscriber in any other manner  that Subscriber’s service shall be unavailable for maintenance or rearrangement purposes, or Subscriber has released the service to MTNN for the installation of a Subscriber service order;

(f) Interruptions or times of service degradation during any period when Subscriber elects not to release the service(s) for testing and/or repair and continues to use it on an impaired basis;

(g) Interruptions or times of service degradation resulting from force majeure events beyond the reasonable control of MTNN including, but not limited to, acts of God, government regulation, national labour strikes, national emergency or war (declared or undeclared) or a power surge outside of MTNN’s facilities;

(h) Interruptions or times of service degradation resulting from Subscriber’s use of the service in an unauthorized or unlawful manner;

(i) Interruptions or times of service degradation resulting from disconnection on account of Subscriber’s breach of a term set forth in the agreement under which MTNN is providing the Service to Subscriber;

(J) Interruptions or times of service degradation resulting from incorrect, incomplete or inaccurate orders from Subscriber.

9. CHANGES TO THIS AGREEMENT

9.1                No , variation of or amendment to this Agreement shall be effective unless made out in writing and signed by both Parties, except that each Party may change the address or the name of the person to whom notices to the party shall be sent by giving written notice of such change to the other party.

10   REDESIGNING OF SOLUTION

10.1                It is agreed between the Parties that if a redesigning of the DATA HOSTING SERVICE is necessary because of changes in requirements by The Subscriber, this shall be effected with cost and contractual implications to be incorporated by written mutual agreement between the Parties.  In the absence of such agreement, the Parties agree to adhere to the initial design as agreed herein.

11. CANCELLATION OF ORDER

Any order for the provision of service can only be cancelled within 30 (Thirty)  working days of the date it is placed and in the event of such cancellation MTNN shall be entitled to retain or receive 10% (Ten Percent)of the Access charge as cancellation fee.

12. SERVICE SUSPENSION

12.1 MTNN has and reserves the right to suspend service immediately in the event that it has reason to believe that any of it is being used to facilitate an illegal or fraudulent, dishonest or immoral purpose. MTNN has and reserves the right to suspend service on any service immediately in the event that it has reason to believe that its operating license or any other business related agreement to which it is party may be suspended, revoked or terminated wholly or partly on account of its provision of services to the Subscriber or on account of the use to which the Subscriber is putting the Service(s), Provided that MTNN shall immediately notify the subscriber of the reasons for such suspension and both parties shall take steps to rectify the situation.

12.2 MTNN has and reserves the right to suspend or disconnect service immediately and recover the assigned resources to another subscriber in the event that the Subscriber incurs debt in respect thereof and fails to pay within 30 days of delivery of MTNN’s invoice.

13                   TERMINATION13.2            The provided infrastructure (both hardware and software) to the Subscriber shall at all times remain the property of MTNN to be dealt with in its absolute discretion after the termination of service to the Subscriber in accordance with these terms and conditions

14. FORCE MAJEURE

14.1              If either party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement from any cause beyond the reasonable control of that party, including without limitations, acts of God, civil commotion, riots, insurrection, acts of government, fire, theft, explosion, epidemics, governmental embargoes or like causes, the party so affected shall be relieved of its obligations hereunder during the period of such events and its consequences, but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage either general, special or consequential which the other party may suffer due to or resulting from such delay or failure provided always that written notice shall within 24 (twenty four) hours of the occurrence constituting such force majeure be given of any such inability to perform by the affected party.

14.2              The following items shall, where they are the proven cause of a service interruption, provided they are beyond the reasonable control of MTNN,  be excluded from the calculation of service level performance and associated service debits and credits:

a.      Riot

b.      Flood

c.      Earthquake

d.      Outages due to a direct hit or visible damage due to a lightning strike

e.  Outages due to electromagnetic interference (EMI).

f.      Unusually severe weather, such as but not limited to strong wind or gale force wind

g.      War including civil war

h.      Acts of military and government in either its sovereign or contractual capacity

i.      Explosions not caused by MTNN’s or its subcontractors’ negligent act or omission

j.      Epidemics and quarantine restrictions

k.      General strikes, lockouts, sit-at-homes,

l.      Embargoes

Vandalism

m.     Lack of security and or workable conditions at site (e.g., street urchins (frequently referred to as ‘area boys’, local disaster at site)

n.       Road construction activities where not within MTNN’s scope of work and control (MTNN will require the Subscriber not to penalise this outages as performance based as  resolution will be within stipulated fibre cut Mean Time to Repair (MTTR) per Site covered by this Agreement). MTNN shall communicate with the Subscriber on the severity of any fibre cut due to road construction or such other activities which might take place and affect the provision of the Services to the Subscriber. This communication will occur within the agreed mean time to repair (MTTR) timeline.

14.3.               The parties hereby agree that in the event of a declaration of force majeure, the rights and obligations of both parties to this Agreement shall be suspended in respect of that aspect of the services for which force majeure has been declared, for the period of the declaration. The Parties further agree that should such event constituting force majeure last more than twenty (20) days, the party who has not invoked force majeure to excuse any non-performance of its obligations may terminate this Agreement by giving Ten (10) days written notice to the other.

14.4               Late performance by MTNN or its subcontractor caused by a shortage of supervisors or labour, inefficiencies, or similar occurrences, or late delivery of equipment or materials caused by congestion at a manufacturer or supplier’s plant or elsewhere, an oversold condition of the market, inefficiencies, or similar occurrences shall not constitute force majeure.

15.                CONFIDENTIALITY AND NON DISCLOSURE:

15.1         All business, Subscribers, commercial, scientific or technical information as well as the contents of this Agreement, or any proposal or price list, whether current or not, received by or made available to the Subscriber under this Agreement, or during negotiations prior to the conclusion of this Agreement, shall be treated by the Subscriber as confidential and shall not be disclosed to third parties, or used for any purpose other than that for which it was disclosed, without MTNN prior written consent.

15.2                MTNN has and reserves the right to provide any information in its possession in respect of any subscriber to, the Nigerian Communications Commission, law enforcement agencies or any other regulatory authority who requests for it.

16. LIMITATION OF LIABILITY

16.1    The Subscriber acknowledges and accepts that save as herein provided MTNN shall not be liable to the Subscriber or any third party for any loss, claim or damage whatsoever caused by or arising out of this agreement or the use of the Hosting Infrastructure and related service(s) provided in this Agreement, without the fault, negligence or recklessness of MTNN. Furthermore, save as herein provided MTNN shall not be liable for any direct, indirect, contingent or consequential loss or damage, or for loss of profit, business, revenue, goodwill or opportunity arising or sustained without the fault, negligence or recklessness of MTNN in connection with the Service or the disruption of service thereto.

16.2   The Subscriber acknowledges that it has no right to assign the Subscriber’s rights in respect of the Hosted service(s) to any person whatsoever.

16.3  MTNN shall provide call blocking facility for line security at no cost to the Subscriber.  The Subscriber hereby undertakes to utilize this feature as MTNN shall not be liable to damages or loss arising from the usage of the line (s) due to failure on the part of the Subscriber to apply the blocking feature at any point in time.

16.4   MTNN shall not be liable to the Subscriber, its employees, agents, associates or any client of the Subscriber for any loss, claim, action, expense, damage or injury suffered or sustained by the Subscriber whatsoever and howsoever arising without the fault, negligence or recklessness of MTNN pursuant to or as a result of the provision of services to the Subscriber. In particular, MTNN shall not be liable for any financial loss, loss of business, profit, savings, revenue, or goodwill suffered or sustained by the Subscriber or its clients, howsoever arising without the fault, negligence or recklessness of MTNN.

17.6  A defaulting party shall be liable for any loss or injury suffered or sustained by either party or   its representatives, which is attributable to the defaulting party or a person for whom he is responsible and shall indemnify, save harmless and defend the innocent party from and against all claims arising from such default.

18 DISPUTE RESOLUTION

18.1                    If any dispute arises between the parties in connection with this Agreement or its subject matter and which cannot be resolved amicably by the parties, the parties shall promptly make effort to resolve the dispute by mediation or conciliation. If the dispute remains unresolved, the parties shall promptly refer the dispute to arbitration.

18.2  Arbitration shall be presided over by a single arbitrator appointed and conducted in accordance with the provisions of the Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria 2004 or any amendments or re-enactments thereof. If the parties cannot reach agreement, they shall proceed to litigation in the courts.

18..3                 In the event that the Parties fail to select an arbitrator as provided by the Act, then either party may apply to the Chartered Institute of Arbitrators, UK (Nigerian Branch) for the appointment of the single arbitrator. The Parties undertake to carry out the Award without delay.  Awards shall be final and binding on the Parties from the date they are made and judgment upon any Award may be entered in any court having jurisdiction.

18.4     The provisions of this clause;

a)    constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no party shall be entitled to withdraw there from or claim at any such proceedings that it is not bound by those provisions; and

b)    are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity of this Agreement for any reason.

18.5    This clause shall not preclude any party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

18.6      The provisions of clause 18.1 and 18.2 above shall not prevent MTNN from instituting proceedings to recover any amount that may be due to it by the Subscriber or to exercise any of its rights consequent upon breach by the Subscriber, including the disconnection or suspension of any service from the Network.

19.        DETAILS OF AUTHORISED CONTACT PERSONS

NAME AND ADDRESS FOR CONTACT PERSONS           NAME AND ADDRESS FOR CONTACT PERSONS             (MTNN)                                                                                        (BT Education Service)

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by and through their duly authorised representatives on the day and date above written.

For and on behalf of                                                            For and on behalf of

MTN NIGERIA COMMUNICATIONS LIMITED             BT Education Service LIMITED

Name: __________________________                      Name:    _____________________________

Title:       __________________________                   Title:       _____________________________

Signature: _______________________                       Signature: __________________________

Date:      __________________________                   Date:      _____________________________

Witness:                                                                               Witness:

Name: __________________________                      Name:    ____________________________

Title:       __________________________                   Title:       _____________________________

Signature: _______________________                       Signature: __________________________

Date:      __________________________                   Date:      _____________________________