ADDITIONAL TERMS FOR WAN OPTIMISATION SERVICES SCHEDULE 2W

Transcription

1 ADDITIONAL TERMS FOR WAN OPTIMISATION SERVICES SCHEDULE 2W

2 CONTENTS 1 Service Description Definitions WAN Optimisation Service Terms WAN Optimisation Service and Connectivity Services Access and Permissions Delivery and Shipping Terms Existing Equipment Service Installation Equipment returns Service Management Hardware Service Maintenance Charges Charges Payable by the Service Level Agreement Service Levels Hardware Replacement Service Installation Limitations to Payment of Service Credits Incident Reporting and Management Incident Handling Incident Duration Export Control Supplier Flowdown Provisions WAN Optimisation Service Configuration Changes Page 2 of 12

3 1 SERVICE DESCRIPTION s WAN Optimisation Service provides a managed Service that is intended to enhance the performance of applications running over s Connectivity Services. WAN Optimisation Services may be provided to as a: (i) (ii) Service contract type when does not purchase the WAN Optimisation Equipment used for the provision of the Service; or Sale contract type when purchases the WAN Optimisation Equipment to be used for the provision of the Service. 2 DEFINITIONS Availability means ability to exchange IP Traffic with the assigned Port on the WAN optimisation Equipment and the IP Network on a 24 hours basis, as measured over a Monthly Review Period; Bandwidth Limit means the maximum amount of bandwidth that the WAN Optimisation appliance is licensed to send or receive across all WAN Interfaces; Business hours means 9.00 am to 5.00 pm on any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or other statutory or national holiday in the jurisdiction in which the relevant activity is to be performed; Connection Limit means the total number of TCP or UDP connections or sessions associated with data traversing the WAN Optimisation Equipment; Connectivity Services means VPN Services, Ethernet and Internet Access all of which are governed by the applicable Additional Terms as Schedule 2; Connectivity Schedule means the Schedule 2 pertaining to Connectivity Services, as applicable; Port means the provision of a physical and logical connection into the IP Network that is dedicated solely for the use of the for exchange of Traffic; Delivery Point means the location as is determined in Paragraph 3.3; Hardware means any tangible product forming part of the Services; IP Network means the owned Pan-European network equipment monitored and managed by for the purpose of transporting IP Traffic; IP VPN means a MPLS based private and dedicated IP network separate from the Public Internet that can be either Fully Managed or Wires Only; Local Area Network or LAN means a local area network that links personal computers and workstations within a limited geographical area, such as a building or several contiguous buildings; Traffic means all IP packets that are transmitted and received at the Port; WAN Optimisation Equipment means any equipment provided or managed by, including Hardware and Licensed Software, to be used for WAN Optimisation Service(s); and WAN Optimisation Service or Service means a service that uses one or more techniques including but not limited to acceleration, caching and compression to improve the performance of applications running over a wide area network. Any other capitalised terms have the meanings set out in Schedule 1. Page 3 of 12

4 3 WAN OPTIMISATION SERVICE TERMS The following terms and conditions shall apply when provides WAN Optimisation Service(s) to the. 3.1 WAN OPTIMISATION SERVICE AND CONNECTIVITY SERVICES Where is providing Connectivity Service(s) and WAN Optimisation Service to a Site and the notifies it wish to terminate the Connectivity Service for that Site, WAN Optimisation Service for the same Site shall co-terminate with the Connectivity Service, except otherwise agreed in writing. For the avoidance of doubt, where the Connectivity Service and the WAN Optimisation Service are so terminated, Clause 6.3, consequences of termination, of Schedule 1 shall be applicable to both Services. Without prejudice to the foregoing, and except otherwise set out in a Schedule 2 (including, without limitation, Schedule 2W and Schedule 2G), when provides the Connectivity, its Service Level agreement for Connectivity is set out in the applicable Connectivity Schedule. 3.2 ACCESS AND PERMISSIONS a. The agrees to provide, its employees, representatives and authorised agents, with access to the Premises to enable to carry out its obligations to deliver Services (where applicable). b. Prior to the installation of any Service at Premises the will ensure that all necessary consents, licences approvals and permissions have been obtained, and that all necessary preparation work has been carried out at its Site in accordance with any instructions that have provided, including but not limit to, any WAN optimisation form to be filled in by the, achieve relevant authorisation from landlord or public authorities. Such work is at the s sole expense. c. will at all times provide, its employees, representatives and authorised agents, as may be reasonably required, access to the Equipment via the IP Network, or otherwise, in order to enable to carry out management of the Equipment. will notify the in advance where it requires to make such access available. In the event of any suspected Hardware device failure and where in-band management access is not available, it is responsibility to provide with all required system logs retrievable via the console interface before a replacement Hardware unit will be despatched to Site. Should the has no technically competent resource onsite to deliver on this obligation, the must provide and install at its cost a dedicated RS232 terminal device for remote troubleshooting purposes per device. d. At any time, may require that WAN Optimisation Equipment be disconnected from the IP Network for the purpose of any inspection, maintenance, adjustment, repair, and replacement or testing WAN Optimisation Equipment on the IP Network. e. The hereby agrees with not to replace the WAN Optimisation Equipment, to make any modification alteration or connection to the same other than by prior agreement in writing with nor to make any disconnection therefrom otherwise than in accordance with such terms and conditions as shall from time to time stipulate. f. It is the s responsibility to ensure that (i) appropriate environmental conditions are maintained for the WAN Optimisation Equipment and any Hardware and take all reasonable steps to ensure that the WAN Optimisation Equipment and the Hardware is maintained and operated in a proper manner by s employees and in accordance with the s instructions, (ii) adequate and suitable supply of electricity is available for the correct operation of the WAN Optimisation Equipment and Hardware and take reasonable care to ensure that such supply is not affected by other equipment connected to the same circuit and Page 4 of 12

5 (iii) where the Service Maintenance level (as defined in Paragraph 3.7. below) does not include an onsite engineer, the shall provide and bear the cost of an appropriate skilled engineer onsite as and when required. g. For the Service contract type ownership and title in any WAN Optimisation Equipment provided by under this Agreement shall at all times belong to, unless stated otherwise in the applicable Purchase Order. The shall prevent third parties from asserting any rights in relation to such Equipment. For the Sale contract type title to the WAN Optimisation Equipment shall pass to on full payment for the WAN Optimisation Equipment. h. During the continuance of this Agreement it shall be the s responsibility to insure, and keep insured, WAN Optimisation Equipment with a reputable insurer against loss, theft, damage or destruction howsoever arising (unless such damage or destruction is caused by or its agents). Such Equipment shall at all times be at the s risk. i. The is solely responsible for the internal cabling that is required to connect the Local Area Network to the WAN Optimisation Equipment. j. The is solely responsible for providing and maintaining, as specified by, all the wiring to connect the WAN Optimisation Equipment to the CPE unless the WAN Optimisation Equipment is located within 1.5 metres of the CPE following an unobstructed route, in which case will provide the wiring to connect the CPE to the WAN Optimisation Equipment. 3.3 DELIVERY AND SHIPPING TERMS a. shall deliver to the the WAN Optimisation Equipment as set out in a Purchase Order, or where a particular model of WAN Optimisation Equipment is not available from the manufacturer, one with a similar or improved specification. b. Delivery of WAN Optimisation Equipment will be, unless otherwise set out in the relevant Purchase Order: i. in accordance with Incoterms 2010 DDP for any country within the European Union, plus Switzerland, Norway the USA and Hong Kong; ii. In all other cases Incoterms 2010 Ex-Works EW from a location designated by shall apply, unless otherwise specified in Purchase Order. For DDP deliveries the Delivery Point will be the address detailed in the Purchase Order. For DAP deliveries (where expressly specified and agreed in the Purchase Order) the Delivery Point will be prior to customs at the country in which the address detailed in the Purchase Order is located and for EW deliveries the Delivery Point will be the location designated by. For EW and DAP deliveries the will be, or will nominate an affiliate to be the importer of record. However, regardless of the chosen Incoterm for delivery all delivery costs (insurance, freight, customs, duties shipping costs etc.) shall be borne by unless specifically excluded in a Purchase Order. c. Notwithstanding the foregoing, the will take title and become legal owner of the WAN Optimisation Equipment in jurisdictions where does not have a legal entity and shall grant full management access to such Equipment. For the avoidance of doubt, legal entity becoming legal owner of the WAN Optimisation Equipment shall be registered within an EMEA country. d. The shall provide with such documentation, information and support as is necessary to comply with the laws and regulation governing the export, import or re-export of any of WAN Optimisation Equipment. Page 5 of 12

6 3.4 EISTING CUSTOMER EQUIPMENT Where there is an existing Equipment in a Site where has been requested to provide WAN Optimisation Service, it is a requirement, before Service installation, to carry out a health check on the devices, at s cost, to understand the state of the environment and to provide with a point of reference in which Service can commence. 3.5 SERVICE INSTALLATION a. Upon acceptance of the Purchase Order, shall specify to the the anticipated lead times for the installation of a WAN Optimisation Service. Where applicable, will agree with the a Committed Date for each Service and based upon supplier availability for any WAN Optimisation Equipment. b. The dependencies for delivery of WAN Optimisation Services are as follows: i. Supplier leads times for delivery of WAN Optimisation Equipment (if applicable); ii. Availability of connectivity (whether provided by or ) iii. Delays in customs or to the obtaining of appropriate export licences or other authorisation; iv. Site access/room preparation; v. Health check assessment, (if applicable) vi. delay filling in the WAN Optimisation forms provided by. Except where due to s negligence or fault, shall have no liability for a failure to meet an installation date due to any of the dependencies set out in this Paragraph. acknowledges and agrees that installation of WAN Optimisation Equipment will cause temporary unavailability or degradation of the () Connectivity Services. The shall not be entitled to claim Service Credits for such unavailability or degradations. c. Service installation covers the installation and provision of WAN Optimisation Equipment, and installation of optimisation configuration which shall be supplied by based on the results of the WAN optimisation form filled in by the, and any consultancy engagement thereafter. d. Pursuant to the terms of this Schedule, where no engineer or subcontractor is available, the may be required to carry out the physical installation of the Hardware. e. Where engineer or subcontractor onsite is available, the shall notify any failure related to the installation before the engineer or subcontractor leave the affected Site. If the fails to do so, will be entitled to invoice the any additional charge arising as a result of additional Site visits. 3.6 EQUIPMENT RETURNS Except otherwise agreed in writing between the Parties, for WAN Optimisation Services under a Service contract type, on expiry or termination of the Agreement, a Purchase Order or a Service, Clause 6.2.b of Schedule 1, General terms and Conditions shall apply. Further to the provisions of such Clause 6.2.b, and except otherwise agreed in writing between the Parties, the is required to return the WAN Optimisation Equipment in accordance with the following: will (a) pack the WAN Optimisation Equipment in accordance with the s guidelines; (b) deliver such WAN Optimisation Equipment to at any destination reasonably designated by ; and (c) is not responsible to refurbish or restore the original conditions of the premises or telecommunication rooms or for making good any damage caused or repair works related to the removal or dismantling of the WAN Optimisation Equipment. When returns the WAN Optimisation Equipment to, also must return all copies of any Licensed Software (including any certificate of authenticity, end user license agreement, Page 6 of 12

7 any CD-ROM, diskettes or other media relating to the Licensed Software and any other materials delivered with the Licensed Software) to. All dismantling, packaging, transportation, repair and refurbishment, in-transit insurance and shipping charges will be borne by. All WAN Optimisation Equipment must be returned to in the same condition and working order as when delivered to, reasonable wear and tear excepted. will be responsible for, and will reimburse promptly on demand for, the cost of returning the WAN Optimisation Equipment to good working condition. 3.7 SERVICE MANAGEMENT a. From time to time may automatically upgrade WAN Optimisation Equipment with new Licensed Software, update the central telephone directory when changes are made and proactively initiate service support when information about issues reached directly. b. shall make available Service Desk Support 24 hours a day, seven days a week, 365 days per year, in English language. 3.8 HARDWARE SERVICE MAINTENANCE As part of the WAN Optimisation Services will provide the the following Hardware Service Maintenance options: a. Platinum Level: In the event of a Hardware failure,, or an appointed subcontractor, provides on-site Hardware replacement with field engineer on site to replace a failed appliance or part and set up the IP address for full appliance replacements and will provide this within the target set forth in Paragraph 5.2 below. However, field engineers do not bring replacement parts to the Site or take defective parts away from the Site, upgrade or downgrade software, or configure replacement appliances. b. Gold Level: In the event of a Hardware failure,, or an appointed subcontractor, provides advance replacement in a best efforts basis. Notwithstanding the foregoing, Service Maintenance Levels are dependent on the geographical location of the deployed Hardware and may change from time to time; therefore Service Maintenance Levels available for each requested Site will be assessed in a case by case basis and agreed in the Purchase Order. Where a Service Maintenance Level is no longer available in a specific location, shall give to the the maximum period of notice practicable in the circumstances. 4 CHARGES 4.1 CHARGES PAYABLE BY THE CUSTOMER a. Charges for WAN Optimisation Service(s) shall comprise Fixed Rate Charge(s), Installation and any additional Charge(s) set forth in this Agreement. b. Unless otherwise agreed between the Parties in the Purchase Order, Charges for WAN Optimisation Service(s) and any applicable cancellation charges will be invoiced in accordance with the terms specified in the Agreement for the amounts detailed in the Purchase Order or Change Order. c. In addition to section 4.1.a. above, reserves the right to invoice the any consultancy charges associated with the solution design of the WAN optimisation solution, during the project and through the Term. Such charges will be specified in the applicable Purchase Order. d. Unless specified otherwise on the Purchase Order, shall invoice any Charges related to WAN Optimisation Equipment shipment (including freight, handling, import duty and Page 7 of 12

8 shipping insurance fees), delivery, installation and local charges on the date of the Purchase Order. e. In addition, any costs incurred by due to changes in installation dates and inability to perform installation due to Premises not being available at the agreed date may be invoiced to the on a time and material basis with minimum charge of 1500 plus travel costs. f. Charges for the WAN Optimisation Services will commence upon the Ready for Service Date of the first WAN Optimisation Equipment at the Site. g. For any deliveries outside of the EU, any import VAT, duties, levies, imposts or other Customs charge shall be payable by the in addition to the Charges. 5 SERVICE LEVEL AGREEMENT will provide the with Service Credits (where applicable), as set out below, for the failure to meet the Service Levels. Subject to the applicable Service Level, the shall be eligible for a Service Credit when the relevant Service fails to meet stated Service Levels. The Parties acknowledge that it is technically impracticable to provide the Services free of faults. However, without prejudice to the generality of the foregoing, shall endeavour to provide the Services in accordance with the relevant Service Levels detailed below. endeavours to carry out maintenance work, updating, remedy, repair or re-connection of WAN Optimisation Equipment and the Services in accordance with the provisions contained within the Agreement and to maintain Premise Equipment in good working order. 5.1 SERVICE LEVELS Service Levels are defined for the following Service performance measurements: a. Hardware Replacement b. Service Installation 5.2 HARDWARE REPLACEMENT shall use reasonable endeavours to ensure that incidents with Hardware reported by the are resolved in accordance within the following target: Maintenance Level Platinum Service Measure Time from having diagnosed a Hardware incident, to replacement of the affected WAN Optimisation Equipment Incident Resolution Target Up to 12 Business hours Service Credits as % of Fixed Rate Charges for the related WAN Optimisation Service: Gold Best efforts 0 % 20 % For the purposes of this Paragraph 5.2, Hardware incident shall mean an incident where the resolution demands the replacement of the affected Hardware, or part of it. Therefore, the diagnosis of the Hardware incident will happen when, or the relevant vendor, verifies that the cause of the incident is caused by a failure in the Hardware. Except otherwise agreed in writing, where any Hardware shall be replaced, it is the s responsibility to return the failed Hardware to the location indicated by within thirty (30) days of replacement. Page 8 of 12

9 5.3 SERVICE INSTALLATION a. Service installation covers the installation, configuration and provision of the WAN Optimisation Equipment. b. For each Service will agree with the a Committed Date based upon supplier availability of Wan Optimisation Equipment. c. If only part of an order is delayed, valid credits will be payable only in respect of those Service(s) that are not delivered by the Committed Date. On completion of the Service installation of each Service, shall deliver to a Service Handover Document in respect of the Service. Following receipt of acceptance certificate shall have a period of five (5) Working Days to either accept the Service or to notify of any material non-compliance of the Service as described in Schedule 1. d. Where the Committed Date for the installation of a WAN Optimisation Service is not met by, the following Service Credits will apply: Number of full Working Days by which fails to meet Committed Date for installation of the applicable Service: 1 to 5 days 5% 6 to 10 days 10% 11 to 20 days 20% > 21 days 40% Service Credits as % of Installation Charge in respect of the applicable Service: 5.4 LIMITATIONS TO PAYMENT OF SERVICE CREDITS a. Exclusions of Service Credits are set out in Clause 9 of Schedule 1. In addition, further exclusions shall apply where the Service is not performing due to the following circumstances: i. Service Credits do not apply to requests to terminate or suspend access to the WAN Optimisation Service; ii. Service Levels for Hardware Replacement and Service Installation shall not be applicable to Hardware related incidents resulting from s acts or omissions, including but not limited to the below events: (1) Failure or fluctuation of electric power, air conditioning, humidity control, or other environmental conditions; (2) any improper installation or transportation of the WAN Optimisation Equipment, any neglect, misuse or default, or incorrect use of or damage to the WAN Optimisation Equipment; (3) any fault in the attachments or associated equipment (whether or not supplied by ) which do not form part of the WAN Optimisation Equipment; (4) any use of the WAN Optimisation Equipment in combination with any equipment or software not provided by ; (5) any attempt by any person other than s duly authorised personnel or third party s authorised personnel to in any way adjust, add to, repair or maintain the WAN Optimisation Equipment (other than minor maintenance); (6) any relocation or installation of the WAN Optimisation Equipment by the ; or Page 9 of 12

10 iii. iv. (7) any breach of s obligations under this Schedule. If, acting reasonably, decides that the maintenance or repairs have been required as a result of any of the above, shall be entitled to charge for costs incurred by in performing such work at our standard charges. Furthermore, the following exclusions shall apply to Paragraph 5.2 only: (1) Service Level on Hardware Replacement shall not apply if contracts hardware maintenance or support directly with local service provider; (2) Delays in trouble shooting or repairs caused by the ; or (3) Time for customs handling is excluded in the resolution time. The dependencies for the delivery of WAN Optimisation Services set forth in Paragraph 3.5b above shall be excluded from the calculation of Service Credits under Paragraph 5.3. v. shall not be liable to the under this Schedule for any failure in or degradation of the Connectivity Services (whether provided by or another third party provider) affecting the WAN Optimisation Equipment. vi. Furthermore, where there is a failure to meet the Availability Service Levels set out in a Connectivity Schedule due to any WAN Optimisation Service related failure, then the shall not be eligible for Service Credits under the relevant Connectivity Schedule. Where provides Connectivity Service(s) and WAN Optimisation Service(s) to a Site and terminates the Connectivity Service for that Site then Service Credits set forth herein do not apply to the affected WAN Optimisation Service(s) for that Site, provided that agreed in writing to continue providing the WAN Optimisation Service to that Site. b. In respect of any Monthly Review Period, the total amount of any Service Credit payable in relation to any Service Level breach shall not exceed 30% of the Fixed Rate Charge for the affected Service in the applicable Monthly Review Period. c. Service Credits are not applicable for more than one breach of any Service Level outlined in this Schedule 2 arising from the same occurrence. 6 INCIDENT REPORTING AND MANAGEMENT 6.1 INCIDENT HANDLING Any suspected incidents should be reported to the Contact Centre using the procedures detailed in the Service Handover Document to be provided on the Ready For Service Date. When reporting an incident, the should identify the affected Service and provide details of the incident. 6.2 INCIDENT DURATION All incidents will be reconciled against the corresponding ticket raised by the Contact Centre. The exact incident duration will be calculated as the elapsed time between the incident being reported to the Contact Centre and the time when Service is restored. Page 10 of 12

11 7 EPORT CONTROL 7.1. In this Paragraph: a. Restrictive Sanctions means restrictive sanctions measures adopted by the United Nations or implemented by the European Union, a Member State, or the United States; b. Member State means a member state of the European Union; and c. a "Relevant End-use" includes: military use; or, use in connection with chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons; or, use in connection with Iran's enrichment-related, reprocessing, or heavy water-related activities shall be entitled to terminate any affected Purchase Order with immediate effect by giving notice in writing to the in the event that, Restrictive Sanctions directly or indirectly, affects the ability of the to perform its obligations hereunder The warrants and represents to that: a. the performance of the duties will not result in any funds, economic resources, or wider benefits being made available, directly or indirectly, to any individual, entity, or body designated under Restrictive Sanctions; b. it will not sell, export, transfer, re-export, or re-transfer of any goods, works, or services provided by the which may be intended for a Relevant End-use unless prior authorisation by a competent authority has been granted Where is required by a competent authority to provide such records, the upon request by, shall promptly provide with all information, pertaining to the particular end customers, the particular destinations and the particular end use of the goods, works and services provided by the The shall indemnify and hold harmless from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any non-compliance with Restrictive Sanctions by the and shall compensate for all losses and expenses resulting thereof. 8 SUPPLIER FLOWDOWN PROVISIONS a. is entitled to communicate the complete name and address of the to a third party provider of any WAN Optimisation Equipment that might be necessary for successful delivery of the WAN Optimisation Equipment and to be used for internal administration purposes of the WAN Optimisation Equipment third party provider(s). b. If requested by any third party Licensed Software provider, the shall provide the third party Licensed Software provider with serial number(s) and enable the third party Licensed Software provider to perform an inventory review of the s installed base and review serial numbers and other records (upon reasonable advance notice) to validate entitlement. c. The shall provide with at least twenty (20) days in advance notice of any Hardware and/or Licensed Software wishes to have installed to a new location and is entitled to pass this information to the third party provider. Page 11 of 12

12 9 WAN OPTIMISATION SERVICE CONFIGURATION CHANGES Should the require changes to be made to the configuration or operation of the Service once a WAN Optimisation Service has been installed, the must contact via either Telephone, Fax, or through the My Services where possible. Configuration and Service changes might be carried out free of charge depending on the classification of the change. The following table shows all potential WAN Optimisation Service changes and whether they are deemed as chargeable items (Major Changes) or whether they are included within the scope of the Service (Minor Changes). Any changes not listed below are classified as Major Changes. Types of Modifications Major Change Minor Change Add a WAN Optimisation Service to an existing network Remove a WAN Optimisation Service from an existing network Move WAN Optimisation Service from one Site to another within an existing network Configuration of new application not supported by default Upgrade of WAN Optimisation Service Non-standard report configuration and delivery Downgrade of WAN optimisation Service Enable QoS (per Service) Configuration of new application Granite solution Lifecycle Management Plus Service Changes to parameters in existing QoS (per Service) Changes to optimisation parameters ( acceleration / compression settings) for existing applications Where the requests a Minor Change to be carried out on their WAN Optimisation Service, and where all of the relevant information is provided by the to, will endeavour to complete all Minor Changes within three (3) Working Days from receiving such requests. As standard, WAN Optimisation s are permitted to request up to two (2) Minor Change requests per calendar month free of charge. Should a request more than two (2) Minor Changes during a given month, reserves the right to charge a one-off fee of 500. Page 12 of 12