Master Service Agreement (MSA)
Master Service Agreement (MSA)
This Agreement is made on the ”Effective Date” specified in the signed Proposal by and between:
Teledata ICT Limited, a limited liability company duly incorporated under the laws of the Republic of Ghana, having its principal place of business at No. 10 Mensah Saba Road, Kokomlemle, Accra, Ghana (hereinafter referred to as ”Service Provider”)), which expression shall, unless repugnant to the context, be deemed to include its assigns, successors and legal representative of the First Part;
And the customer specified in the signed Proposal (hereinafter referred to as the ”Customer”, which term shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its assigns, successors and legal representatives of the Second Part.
The parties agree that this Master Agreement shall be read and understood accordingly along with the signed Proposal and Service Level Agreement (SLA) and all these documents collectively shall cover the services to be provided by Service Provider and to be received by Customer.
Whereas the Customer needs services from the Service Provider and the Service Provider is ready to provide its services to the Customer on the following terms and conditions mentioned in this Agreement which is agreed and accepted by the Customer in full understanding
NOW, THEREFORE, the Parties mutually agree on the following general terms and conditions:
In this Agreement, the following terms and expressions shall, unless repugnant or contrary to the context hereof, shall have the meaning assigned herein:
” Activation Date” means the date on which a Link gets activated as per terms and conditions of this Agreement.
” Agreement” means this Service Agreement and the terms and conditions as set out herein together with all annexure and schedules, exhibits, the Customer Application Form, and further includes any amendments, additions, modifications as mutually agreed in writing between the Parties from time to time.
” Applicable Law” means any law that is applicable in a particular context and includes legislations as may be amended or repealed from time to time, judicial and quasi-judicial rulings and delegated legislation such as regulations, rules, guidelines and notifications as may be issued by the Governmental Authorities from time to time.
” Charges” shall mean the amount to be paid by Customer in consideration of Services in terms of Clause 4 below, includes only the base fee for Service and excludes third party and all other costs and expenses.
” Customer Equipment” shall mean the compatible telecommunication equipment, independent or as part of any other equipment belonging to or owned by the Customer or any other third party, which are used by the Customer for availing the Services.
” Customer Support Department” shall mean where the Customer shall report an incident or complaint. Details of the same are mentioned in SLA, or if changed, may be intimated from time to time by Service Provider to the Customer.
” Effective Date” of the Agreement means the date on which the Proposal is signed by both parties.
” Exit Payment” means the amount of which shall immediately become due and payable by the Customer in case of earlier termination of this Agreement prior to the expiry of Initial Term.
” Force Majeure Event” shall mean any event and effect thereof to the extent that such event is not caused by (or due to the gross negligence), and are beyond the reasonable control of Service Provider including war, hostility, governmental, statutory or regulatory acts of the Republic, public enemy, guarantee restriction, or act of God, fire, explosions, sabotage, riots, civil commotion, acts of terrorism, earthquake, floods, epidemic, storm, lighting, faults or deficiencies originating in networks of other telecommunication service providers to which Service Provider’s Network is connected.
” Internet Protocol Point of Presence (IP POP)” shall mean and include all the Service Provider’s IP enabled POP’s within the Network.
” ISP” shall mean an Internet Service Provider as defined by National Communications Authority from time to time.
” Initial Term” shall mean the period of the Agreement as provided in the signed Proposal from the date of signing the Proposal.
” Latency” shall mean round trip delay between a designated point of Service Provider Internet backbone and terminating point of Network on the Upstream Service Provider. This would be measured using 108 packets of 32-byte size. So for a Customer in Accra, the Latency will be calculated between the designated point of Service Provider Internet backbone and the terminating point of Network on the Upstream Service Provider.
” Link” shall mean the provision of point-to-point connectivity between the Service Provider Networks to the Customer’s location and more specifically described in the Purchase Order.
” Master Service Agreement” means the Agreement in which the customer had acknowledged and agreed to the terms mentioned therein.
” Packet-Loss” is defined as the percentage ratio of the total number of data packets lost to the total number of data packets transmitted. It is calculated by averaging over SLA Measurement Period, the packet loss between IP POP’s to which Customer is connected up to Service Provider’s internet gateway.
” Parties” means Service Provider and the Customer collectively and ”Party” means each of them individually.
” Planned Maintenance”/”Planned Outage” shall mean by any preventive, routine or scheduled maintenance which is performed with regards to the Private Line Services, the Network or any component thereof, which Service Provider or its agents reasonably believe is/are necessary in order to prevent a defect which may affect Customer’s use or access to the Services and also includes network upgrade/downgrade activities.
” Purchase Order” means the order placed by Customer on Service Provider for the provision of Services under this Agreement.
” Renewal Term” shall mean a similar period as mentioned in the Initial Term which automatically extends after the Initial Term unless notice is given by the customer as mentioned in clause 15 in this Agreement to stop the services at least 90 days prior to the expiry of Initial Term.
” Services” shall mean telephony services, G-Suite services, and internet bandwidth services to be provided by Service Provider as particularly described in the relevant purchase order issued by Customer from time to time and any other incidental services including installation, implementation and providing technical assistance under this Agreement.
” Service Discount” shall mean compensation provided in the form of refund to the Customer, due to non-conformance by Service Provider of committed Service Levels.
” Service Availability” shall mean the period (excluding Service Outage) during which the Customer is able to exchange packets with Service Provider’s IP POP’s.
” Service Level Agreement”(“SLA”) shall mean the SLA incorporated by reference.
” Service Outage”/”Network Unavailability” shall mean any event or period or circumstance (other than a planned/scheduled maintenance) which results in 100% blocking of movements of packets on the Customer’s link and the customer is unable to access any public IP based resources.
” Service Provider Network”/”Network” shall mean the telecommunications network and network components owned and operated By Service Provider, including IP POP. The Service Provider Network does not include Customer’s owned equipment, local data links between POP and Customer’s location or any networks or network equipment not owned or controlled by Service Provider.
” Telecom Authority” shall refer to Chairman and/or Director-General, National Communications Authority, Ministry of Communication, Government of Ghana and/or any other Telecom Regulatory Authority, having competent jurisdiction over Service Provider; and/or Chairman/Director General, National Communications Authority, and shall include any officer empowered by them to perform all or any of the functions of the Authority.
” Incident Ticket” shall mean logging in of the Customer complaint in relation to Service disruption. The reporting of the complaint shall be made to the Customer Support Department of the Service Provider.
” Service Provider IP Address” means an IP address assigned on the internet, as a part of the Service.
” Upstream Service Provider” shall mean an ISP with whom Service Provider has entered into a Bandwidth Leasing Agreement.
2. Scope Of Agreement
2.1 Subject to the provisions of this Agreement, Service Provider shall perform and/or provide to Customer such Services as may be decided in the relevant Purchase Order or Final Proposal as agreed from time to time.
2.2 Customer undertakes that it shall use/utilize Service Provider’s Services only for its own purpose and in no event shall customer use the Service for any purpose not envisaged under this Agreement, including for the purpose of further commercial use/exploitation of the Services.
2.3 Customer shall at its own costs and expenses, cause the Customer Equipment to be compatible so as to have the access and connectivity to the Services of the Service Provider.
2.4 Service Provider shall provide Services subject to (a) terms and conditions contained in this Agreement, (b) provisions of the license under National Communications Authority (NCA), (c) any directions or orders issued by NCA, Government, courts and other statutory authorities, and (d) any policies and/or rules/regulations adopted by Service Provider from time to time with regard to operations and maintenance of the Service.
2.5 Upon delivery of the Link for verification and approval, Service Provider shall notify the Customer to perform any checks or acceptance test for the connectivity of the Link. The Customer shall carry out the verification or acceptance tests and convey in writing with details if there is an issue found within 48 hours from the commencement of such verification tests. The Customer shall, upon completion of the acceptance or verification tests, issue and sign a written report to Service Provider in the agreed format which shall be the Activation Date of Link. However, in the event the Customer does not respond back to Service Provider by written notice within such 48 hours, the written report shall be deemed to be issued and accepted and consequently, the Link shall be deemed activated.
3. Initial Terms
3.1 The Initial Term for the Services shall commence on the service commencement date and shall remain effective for the Initial Term as provided in the signed Proposal from the date of signing the Proposal or any other related document.
3.2 Subject to clause 7.1 of this Agreement, where the Customer decides to exit before the expiry of the Initial Term, the Customer agrees to settle the Exit Payment for the remaining unexpired period.
3.3 On the expiration of the Initial Term as provided in the signed Proposal, the term for providing services shall be automatically renewed on an annual basis or as per plan taken by the Customer (whether quarterly, biannually, annually or biennially) upon the same terms and conditions mentioned in this Agreement, immediately on the next day after the expiry date of the term of the Agreement and referred as Renewal Term
3.4 In case, if the Customer does not wish to avail of the services for any reason whatsoever after the expiry of Initial Term, then the Customer shall send a written notice, not limiting to email, at least 90 days prior to the commencement of the renewal term in a manner as described in clause 15.1. In other respects, clause 7 shall apply.
4. Charges and Payment
a. Service Provider shall invoice the recurring charges to the Customer which should be paid as an advance as per the accepted billing cycle as mentioned in the Service Provider’s Proposal and signed by the Customer. The one-time Charges shall be payable in advance along with the Purchase Order.
b. Any present and future taxes and other statutory levies chargeable in respect of Services provided by Service Provider under this Agreement shall be charged extra to Customer.
c. Service Provider hereby expressly disclaim any and all responsibilities for any liability, misuse, fraud or losses arising out of payments made by the Customer to any person other than the authorized officer of Service Provider.
For the purpose of calculating Service Availability, Packet Loss and Latency do not include downtime or non-conformance to committed SLAs, resulting in a whole or part from one or more of the following causes.
a. Failure to notify the Customer Support Department and raising the incident ticket of a service disruption;
b. Any act or omission of Customer or any of its agents, contractors or vendors without the prior written authorization of Service Provider;
c. Periods where faults are caused due to acts/omissions of Customer equipment or error;
d. Planned outages for which agreed on notification was given in advance to Customer;
e. Non-availability of power supply or other deficiency in the infrastructure provided by Customer;
f. Faults reported by Customer, but no fault is found or confirmed by Service Provider to Customer;
g. Incident tickets related to new installations, upgrades, downgrades and shifting;
h. Customer elects not to release the Services for testing and repair and continues to use it on an impaired basis.
i. Service Provider or its agents are not allowed access to the Customer Equipment or the premises where the access lines are terminated; periods where Customer or bandwidth provider staff was inaccessible to confirm the Service condition after fault clearance by Service Provider;
j. Customer’s scheduled maintenance;
k. Any service degrading or outage caused by third-party last-mile connectivity or by local access facilities ordered directly by Customer;
l. Periods taken by Customer to confirm the Service condition after fault clearance by Service Provider.
m. Disconnection or temporary suspensions due to failure to meet payment obligations by Customer;
n. Periods where interruptions are caused by or due to the occurrence of Force Majeure Events.
6. Obligations of Customer
6.1 Customer shall be bound by the
(i) Terms and conditions of this Agreement,
(ii) Terms and conditions of the Proposal signed by the Customer,
(iii) Guidelines and instructions issued by the National Communications Authority and other statutory authorities as may be advised by the Service Provider from time to time.
6.2 Prior to the commencement of Services hereunder, Customer shall sign and submit the Proposal submitted by the Service Provider, along with prescribed fees/payments as may be required by Service Provider from time to time in order to enable/facilitate the provision of Services (and any additional services) pursuant to this Agreement. The Services shall not be commenced unless and until Customer fulfils all requisite formalities in connection with signal Proposal.
6.3 Customer shall not use Services provided under this Agreement for any purpose that is in violation of any Applicable Laws or of public policy and shall not use the Services in any manner that violates any statutory directives or orders for the time being in force or any manner that may interfere unreasonably, directly or indirectly, with the use of the Services by one or more other Customers of Service Provider.
6.4 Prior to the installation of service by the Service Provider, the Customer shall carry out the following obligations:
(i) Provide necessary space, power, environmental conditions and security precautions at the place of installation
(ii) Provide reasonable access to the Service Provider, including its employees, authorised agents/ third parties
(iii) Ensure that all permissions or authorisations required for the installation to be carried out are obtained from the regulatory/statutory bodies.
6.5 After successful completion of the installation of service by the Service Provider, the Customer shall have the obligations to provide a protective measure for the installed equipment. The measures shall include but not limited to the inverter, stabilizer, UPS and earthing.
7. Termination Of Agreement/breach
Termination by Customer
7.1 Customer may terminate the Agreement during the Initial Term if the following situations arise:
(iv) Service Provider fails to provide the services as agreed and fails to cure the defect within the period of 60 working days from the date of written notice issued by the Customer.
(v) Service Provider fails to comply with any other terms, other than providing services, as contemplated in the Agreement and fails to cure the defects within the period of 30 days from the date of written notice issued by the Customer.
Termination by Service Provider
7.2 Service Provider reserves the right to terminate suspend/disconnect/terminate the Agreement when any payment to Service Provider payable:
(i) Which the Customer has not issued a notice disputing the unpaid portion of the payment, and
(ii) Which remains unpaid more than the due date as mentioned in the invoice and Service Provider has separately reminded Customer of the same.
7.3 Subject to terms and conditions contained herein, the happening or recurrence of any one or more of the following events shall constitute an event of default on the part of Customer under these terms and conditions (an” Event of Default”):
(i) Customer breaches the terms and conditions of this Agreement and fails to cure the same within 60 days of a written demand to that effect being made by Service Provider;
(ii) Any representation or disclosure made by Customer in this Agreement or in any document or certificate furnished by Customer in connection herewith or pursuant hereto, proving to be false, at any time, in any material respect;
(iii) If the Customer fails to comply with all Applicable Laws, rules and regulations, inter alia, regarding the use of the Services.
7.4 Service Provider shall, in its sole discretion and unconditionally, be entitled to suspend/disconnect/terminate the Services with prior notice to Customer in the event Service Provider detects or suspects or has a reason(s) to believe or is advised by statutory agencies/authorities, that the Services provided hereunder is misused/used for illegal and unlawful purposes/carrying obnoxious message etc.
8. Consequences Of Termination
Upon termination of this Agreement on account of breach by the Customer, Service Provider shall not be liable to refund or repay any charges (including advance payments) paid and/or costs and expenses incurred by Customer during the Term. In case of any outstanding balance with the Customer till the effective date of termination, Service Provider shall be entitled to collect the balance and pending amount from the Customer for the services rendered till such effective date. Service Provider shall be entitled to remove and take back any of Service Provider’s equipment that was provided or installed at the Customer’s premises for providing the services.
9. Transfer And Assignment
Customer is not permitted to transfer the Services or to assign any right or interest or delegate any of its responsibilities arising hereunder to any person, firm or company without obtaining the specific prior written permission from Service Provider.
10. General Provisions
10.1 It is hereby agreed that this Agreement together with the terms and conditions contained in the signed Proposal and SLA shall govern the relationship between Service Provider and Customer to the exclusion of any understandings, oral or written, and/or any representation or communications, oral, written or visual, between the Parties relating to the Services.
10.2 Any waiver, concession or extra time allowed or granted by either Party to the other shall be limited and applicable to the specific instance in which it was given and the same shall not affect the waiving Party’s rights under these terms and conditions in any way (whether in that or any other instance).
In the event of any dispute between the Parties relating to these terms and conditions which cannot be resolved by them, the Parties agree to refer the dispute to an Arbitration comprising of a sole arbitrator to be nominated by in accordance with the Alternative Dispute Resolution Act, 2010 (Act 798). The award of the Arbitration shall be final and binding on all the Parties. The Arbitration proceedings shall be held in Accra and shall be conducted in English. The arbitral proceedings and arbitral award shall be governed by the provisions of the Act.
12. Governing Law
Subject to the provision of Clause 11, the provisions of this Agreement (and any disputes arising in connection with the same) shall be governed by and construed in accordance with the laws of Ghana and shall be subject to the exclusive jurisdiction of the courts at Accra.
In the event, any part or the whole of this Agreement is held to be invalid or unenforceable for any reason whatsoever, in such event the part rendered invalid or unenforceable shall not affect the remaining provisions herein contained. In such a case, the Parties shall mutually negotiate and agree to replace such invalid or unenforceable portions with valid and enforceable provisions so as to achieve the mutually agreed economic effect.
This Agreement may not be amended or modified except by way of writing executed on that behalf by authorized representatives of all the Parties hereto.
15.1 All notices, requests, claims, demands and other communication between the parties shall be in writing. Such notices or communication shall be given
(i) Via. Hand delivery, or
(ii) By a nationally recognized courier service, or
(iii) By electronic mail, or
(iv) By confirmed facsimile to the parties at their business address or to such other addresses as either party may specify in writing.
Notice shall be regarded as having been given:
(i) When delivered, if sent by hand, or
(ii) The business day following the date of confirmed transmission, if sent by facsimile, or
(iii) The business day following the date of confirmed delivery if sent by courier.
15.2 Change of Address :
Any party to this Agreement may notify the other party regarding any changes to the address or any of the other details specified in this paragraph; provided, however, that such notification shall only be effective on the date specified in such notice or five business days after the notice is given, whichever is later.
15.3 Refusal of Delivery
The rejection or other refusal to accept or the inability to deliver because of a changed address regarding which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.
Each Party, its employees, associates and agents shall have access to any information which is of a confidential nature. All Service Provider written, digital and oral information or data including, but not limited, to those of a technical nature, or processes or policies and operations communicated to the other shall be held in strict confidence and be used only on a need to know basis and only for purposes of this Agreement (“Confidential Information”). No such Confidential Information shall be disclosed during the Term of this Agreement without the prior written consent of the other Party. Upon termination of this Agreement, all Confidential Information shall immediately be returned without retaining any copies thereof. This Confidential Information obligation shall survive for a period of one (1) year after the date of termination of this Agreement.