SUPPORT SERVICES AGREEMENT
These terms and conditions (the “Support Services Agreement”) are incorporated by reference and form a part of each Order for Support Services that is issued by the Customer and accepted by Tripleplay. Accordingly, confirmation by Tripleplay that it has accepted the Order, or (if earlier) Tripleplay’s commencement of performance of the Services pursuant to the Order, shall establish a separate contract for the supply and purchase of those Services from Tripleplay for each Site, on these terms and conditions.
Capitalized terms used and not defined in this Support Services Agreement have the meanings ascribed to such terms in the Software License or Reseller Agreement between the Customer and Tripleplay, as applicable.
1 DEFINITIONS AND INTERPRETATION
Additional Charges means the charges not included in the Support Services Charge for a Site undertaken on a time-and-materials basis at our standard rates from time to time, including Out of Hours Support, Site Visit Charge Rates and engineering time for upgrades;
Charges means the collective term for the Support Services Charge and, if applicable, the Additional Charge as set out in the Order ;
Customer, you or your means the customer identified on the relevant Order;
Effective Date means the date on which the relevant Order for the Services is accepted by us, or (if earlier) the date on which we commence performance of the Services;
Hardware Issue means there is a fault with the Hardware used as part of the Overall System;
Initial Assessment Period means a period of one business day from when the fault is correctly-reported by you and logged on to the TTS;
Out of Hours means any hour of work performed outside the supported hours of your selected Support Package;
Renewal Period means the automatic renewal period for the Support Services Agreement (Sites) as defined in clause 2.1;
Services means the Support Services and/or Support Package as set out on the Order accepted by Tripleplay;
Support Package means the category of support package selected by the Customer as set out in the Order for each Site. Further specification of the Services within each category of Support Package are set out in Schedule 2;
Support Services means the support and/or maintenance services as detailed at Schedule 1 and the Support Package designated in the applicable Order;
Support Services Charge means the annual charge for the provision of the Support Services as detailed in the Order;
Term means the term of the Support Package for each Product as specified on the Order.
Tier 1 means the gathering of Site information, establishing the Site issues by analysing the symptoms, defining the underlying cause, general system monitoring and site liaison;
Tier 2 means confirmation of the Tier 1 findings, determining if its network and system configuration issues or power or TV distribution feeds or liaising with server manufacturer;
Tier 3 means Software and/or Hardware issues with the Overall System, upgrades to the Overall System, applying Maintenance Release and New Releases (engineering time may be charged for this) to the Overall system;
Tripleplay, we, us or our means Tripleplay Services North America, Inc., a Delaware corporation with its place of business at 1320 North Semoran Blvd, Suite 105, Orlando FL 32807.
TTS means our Trouble Ticketing System for recording, tracking and reporting problems associated with the Overall System;
Trouble Ticket means a ticket produced by the Trouble Ticketing System;
2.1 These Terms shall commence on the Effective Date and shall apply to the Support Services separately in respect of each Site as set out in the Order. These Terms shall run for the Term set out in the Order, subject to a minimum Term of one year, and which shall automatically on expiry (with notice provided by Tripleplay prior to the start of the Renewal Period) renew for further terms of one year (each of which shall be a “Renewal Period”) unless and until terminated in accordance with Clause 6 of these Terms.
2.2 We will only provide Support Services for Sites listed in an Order. If the Customer at a later date decides it would like to include a new location within the scope of the Services, then an additional Order or updated schedule to the existing Order is required. We will issue an additional Order or updated schedule to the existing Order, which shall be deemed to have been accepted by you unless you notify us prior to the earlier of: (a) 14 days of us issuing the updated schedule to you, and (b) us providing any Support Services in relation to that Site, and we will have the right to charge you the appropriate Support Package for each additional Site.
3 MAINTENANCE SERVICES
3.1 Support Services do include the diagnosis and rectification of any fault resulting from:
3.1.1 the improper use or neglect of any part or all of the Overall System or the modification of the Software or its use (in whole or in part) with any other software or hardware not provided by us that they have not certified as being compatible;
3.1.2 the failure by you to maintain any necessary environmental conditions for use of the Overall System which we advise you;
3.1.3 the failure by you to implement recommendations in respect of solutions to faults previously-advised by us within a reasonable time;
3.1.4 the use of the Overall System for a purpose for which all or any of them were not designed;
3.1.5 the use of any Software other than pursuant to and in accordance with the terms of the Software Licence or Third Party Licences (as applicable).
3.2 We shall upon request by you, provide Support Services notwithstanding that the fault results from any of the circumstances described in Clause 3.1 but such Support Services will be subject to an Additional Charge.
3.3 If you fail to comply with reasonable requests for information or refuse to perform basic tasks under our instruction to assist in diagnosing of an incident or fault, you shall pay a reasonable Additional Charge.
3.4 We will notify you in advance when Additional Charges will apply and will require a written confirmation from you to accept the proposed charges before proceeding. If you do not notify us that you do not wish to proceed with such services within 5 business days of our notification, it will be deemed that you have accepted the Additional Charge.
3.5 We are not required to provide Support Services outside of the supported hours as defined by your selected Support Package.
3.6 Notwithstanding Clause 3.4 and at your request, we may provide Support Services Out of Hours (“Out of Hours Services”). Where you request such Out of Hours Services we shall charge our current rates for Out of Hours Services in force at that time.
4 INVOICES AND PAYMENT
4.1 In consideration of us providing the Support Services, you shall pay the Support Services Charge in accordance with this Clause 4.
4.2 We shall invoice you for the Support Services Charge for the Term in advance, at any time after the Effective Date, and in respect of each Renewal Period, in advance at any time after the start of such Renewal Period. You agree to pay for the full amount of the Support Services Charge by no later 14 days after the Effective Date or the start of the Renewal Period (as the case may be).
4.3 We will invoice you for any Additional Charge incurred at the end of the calendar month in which the Additional Charge was incurred. You shall make payment in full within 30 days following the date of our invoice.
4.4 Payment must be made in USD unless otherwise agreed in writing prior to the order being accepted. Payments must be made by way of a cashier’s check, ACH transfer, electronic bank transfer or BACS payment.
4.5 You shall pay all invoices within 30 days of the invoice date. If Tripleplay takes any legal action to collect on undisputed delinquent amounts, Customer shall reimburse Tripleplay for its costs incurred in pursuing such action, including but not limited to legal fees and court costs.
4.6 Customer shall reimburse Tripleplay for all sales taxes and other taxes, however characterized by the taxing authority, based upon the fees, prices or other charges under this agreement, except for any taxes based upon Tripleplay’s net income or gross receipts or for any franchise or excise taxes.
4.7 We may upon sixty (60) days’ prior written notice and agreement with you in advance, vary the Charges once in every year, such variation to come into effect upon the commencement of the next Renewal Period.
4.8 Notwithstanding Clause 4.7. we may vary the Charges at any time to reflect pro rata any variation in the cost to us of providing the Support Services which arises as a consequence of any change in the manner or rate of taxation, the law or other regulatory requirements. We will endeavour to provide you with reasonable prior notice of such an increase, where practicable.
4.8.1 If Customer is delinquent in payment of any portion of an invoice that it has not disputed in good faith, Tripleplay may, in addition to other remedies it may have, including termination, elect any to do any or all of the following by written notice to Customer:
4.8.2 cancel or suspend any further provision of Services hereunder; or
4.8.3 charge a late fee on delinquent amounts at the rate of 1.5% per month (or, if lower, the maximum amount permitted by law) that a payment is overdue.
5 Customer Obligations
5.1 You agree to provide remote connection to allow our VPN software to access the Overall System and you will be responsible for any associated Site cost for this link, and for obtaining any necessary authorities, consents or other approvals in order to provide us with this link. For the avoidance of doubt, the remote access provided to us is only to allow us to assist you to correctly report errors and to audit the Overall System. If you do not provide a remote connection for us to access the system, then we shall in such circumstances be entitled to levy an Additional Charge for sending an engineer to the Site to perform the Support Services.
6.1 Either you or we may terminate the Order with respect to the Support Services pursuant to these Terms, in whole or individually by Site, by giving the other party not less than 3 months’ prior written notice of termination, such notice to take effect at the end of the Term or then-current Renewal Period.
6.2 Either party may terminate these Terms forthwith by giving written notice to the other party on the happening of any one or more of the following events, namely:
6.2.1 the other party commits any material breach (which may, without limitation, consist of a series of minor breaches) of any of its obligations under these Terms which (if capable of remedy) it fails to remedy within thirty (30) days of a notice in writing given the breach and requiring such breach to be remedied; or
6.2.2 an Insolvency Event occurs in respect of the other party; or
6.2.3 exercisable by Tripleplay only in the event the Customer undergoes a change of control to a direct competitor (and “control” means ownership of more than half the capital, business or assets of or the power to exercise more than half the voting rights of or the power to appoint more than half the members of the Board of Directors of or the right to manage the affairs of a party and a “change” shall take place where some person other than the person or persons enjoying such control at the date of execution of this Agreement, acquire it, whether alone or acting in concert with others);
6.2.4 or you assign, sub-licence or provide to any other person, or otherwise deal in the Software, Hardware or any part of them, or purport to do so, without our prior written approval.
7 CONSEQUENCES OF Termination
7.1 Upon termination of the Order (or the relevant part thereof) for the provision of Services pursuant to these Terms howsoever caused:
7.1.1 any sums owing to us by you shall immediately become due and payable;
7.1.2 you will be liable to pay all the Support Services Charges for the initial one year term or Renewal Period for the Sites to be terminated; and
7.1.3 where terminated in part we shall have no obligation to provide any Support Services (including to provide any Maintenance Releases or New Releases or any other form of update or modification) with respect to the part of the Order which has been terminated, or the whole Order where terminated in full.
8 WARRANTIES AND Liability
8.1 Tripleplay does not warrant that the Services shall be uninterrupted or error-free. You accept responsibility for the selection of the Services to achieve your intended results and acknowledge that the Services have not been developed to meet your individual requirements.
8.2 You acknowledge that, except as set forth herein, Services are provided “as is” and expressly subject to the following disclaimer. To the fullest extent permitted by law, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this license or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8.3 Nothing in this Agreement will operate so as to exclude or limit our liability in respect of death or personal injury caused by our negligence or that of our servants or agents.
8.4 Subject to clause 8.3, we shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, including but not limited to loss of profits, loss of business depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of use, or loss or corruption of data or information.
8.5 Subject to clause 8.3, Tripleplay is not liable to the Customer in contract, tort (including without limitation negligence or misrepresentation whether innocent or negligent) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in relation to the Services, in a sum which is greater than the total Charges paid by the Customer to Tripleplay in respect of the relevant Order.
8.6 You agree that, in entering into this Agreement, either you did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this license or (if you did rely on any representations, whether written or oral, not expressly set out in this license) that you shall have no remedy in respect of such representations and (in either case) Tripleplay shall have no liability in any circumstances otherwise than in accordance with the express terms of this license.
8.7 Subject to Clause 8.3, in the event of any breach of any of our obligations hereunder (whether by reason of defective materials, production faults or otherwise) our liability shall be limited to (at our option):
8.7.1 the repeating of the Support Services at the affected Site for the current Term (or Renewal Period, if applicable) without any additional cost to you; or
8.7.2 replacement of all or the affected part of the Overall System or its components at the affected Site with a suitable alternative at our cost; or
8.7.3 repayment of the price set out on the relevant Order (where this has been paid) relating to the Support Services at the affected Site.
9 general PROVISIONS
9.1 This constitutes the final agreement between the parties with respect to the matters set forth herein. No additional terms and conditions included with any Order are binding on Tripleplay, even if the Order is otherwise accepted by Tripleplay. All such additional terms will be of no force or effect and will be deemed rejected by Customer in their entirety. In the event of any conflicts between this Support Services Agreement, the Reseller Agreement or Software License between the Customer and Tripleplay, as applicable, and any Order, the order of precedence is the order set forth in this sentence, except to the extent that the conflicting document expressly states its intention to override a specific provision of the controlling document. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this are expressly merged into and superseded by this Support Services Agreement. The provisions of this Support Services Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Support Services Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Support Services Agreement. There are no conditions precedent to the effectiveness of this Support Services Agreement, other than any that are expressly stated in this Support Services Agreement.
9.2 Neither party will have any liability to the other for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Order and these Terms caused by any factor beyond its reasonable control.
9.3 The Support Services Agreement is personal to the Customer and the Customer may not assign, transfer or charge its rights and liabilities under the Order and these Terms or any of them, or sub-contract or otherwise delegate any of its obligations under the Order and these Terms without our prior written consent.
9.4 The parties can waive a provision of this Support Services Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition under this Support Services Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
9.5 The laws of the State of Florida (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Support Services Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Support Services Agreement must be brought exclusively in a state or federal court of competent jurisdiction sitting in Orlando, Florida, and each party to this Support Services Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Support Services Agreement.
9.6 Each party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Support Services Agreement must give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this Support Services Agreement is a writing: personal delivery, registered or certified U.S. Mail (in each case, return receipt requested and postage prepaid), or nationally recognized overnight courier (with all fees prepaid). Any party giving a Notice must address the Notice to the appropriate person at the receiving party (the “Addressee”) at the address listed on the first page of this Support Services Agreement or to another Addressee or another address as designated by a party in a Notice pursuant to this clause. Except as provided elsewhere in this agreement, a Notice is effective only if the party giving the Notice has complied with this paragraph.
SCHEDULE 1 – Support Services
1.1 The Support Services shall be limited to providing Tier 3 services for the Overall System. The Customer shall be responsible for ensuring that Tier 1 and Tier 2 services are obtained by it and such services are provided timely and to a suitable and professional standard.
1.2 We shall record and track all incidents raised by you and your nominated users through the TTS which shall raise a Trouble Ticket that will be issued to you;
1.3 You shall report the fault to us via with via email on email@example.com or directly by phone on ______________________ at which time we shall log the fault on the TTS.
1.4 Once our support centre have acknowledged a Customer Trouble Ticket, we shall perform the following activities as part of the Initial Assessment Period:
(a) Review all logs available within the Overall System;
(b) Perform remote interrogation of the Overall System (assuming there is connectivity to the Site) to determine the cause of the problem;
(c) Identify the source of the problem using:
(i) an analysis of the system logs;
(ii) debug traces and;
(iii) other diagnostic information.
(d) If the problem relates to the Overall System, then we shall endeavour to provide a remedy for the problem as part of the problem resolution where possible;
(e) When a problem is resolved, the appropriate remedy shall be applied to the Site, you will be informed and the Trouble Ticket closed.
1.5 Where a problem cannot be resolved within the Initial Assessment Period, the problem shall be categorized and managed as follows:
|Category||Standard Update Time||Escalation Time and Process|
|Every 8 Working Hours
|After 4 Working Hours to Support Manager
After 1 Working Day to the Operations Director
After 2 Working Day to the General Manager for the Region
After 3 Working Days to the CEO
|Tier Two||Every 48 Working hours||After 24 Working Hours to Support Manager
After 2 Working Days to the Operations Director
After 5 Working Days to the General Manager for the Region
After 8 Working Days to the CEO
|Tier Three||Every 5 Working Days||N/A|
|Hardware Issue||Refer to Clause 1.11|
1.6 Where we believe it is necessary, a Maintenance Release to resolve a problem or series of problems shall be produced by us and delivered to the you to resolve the issue at the Site;
1.7 We shall notify you if on-site technical support is required for a Site and you must provide written confirmation of your agreement to pay for any Additional Charges;
1.8 Tripleplay Trouble Tickets shall be closed if no update is received from you after ten business days in respect to a request for further information or for action to be taken by you. Responses after this period shall require another Trouble Ticket to be raised. We will notify you two business days before a ticket is automatically closed.
1.9 We may provide a new telephone number for the remote support at any time on thirty days written notice to you.
1.10 If requested by you and no more than once every 12 months, you and we may hold a business review meeting to review such issues as obsolescent of elements of the Overall System, last order dates for Hardware and inventory levels for spares.
1.11 In the event that we have classified the trouble ticket as a ‘Hardware Failure’ within the Overall System the following procedures shall apply.
|Category||Support provided as part of purchase||Process for resolving hardware issue|
|HP Server||3 year on-site next business day includes all aspects of server including motherboard, memory and power supply unit but does not include IPTV Interface cards.||You to call your local representatives server manufacturer support desk quoting serial number
|IPTV Interface and encoder Cards||1 year return to us||You to arrange RMA through Tripleplay support, average replacement time 5 Working Days|
|Hard disk||1 year return to us||You to arrange RMA through Tripleplay support, average replacement time 5 Working Days|
|Set Top Box||1 year return to us includes PSU, STB and standard remote control||You to arrange RMA through Tripleplay support, average replacement time 20 Working Days|
|Customised remote control||1 year return to us||You to arrange RMA through Tripleplay support, average replacement time 20 Working Days|
1.12 We agree to hold the components used in the Overall System as part of our spares inventory wherever reasonably possible. However, if the spares inventory is exhausted and we are unable to source the Hardware, we may replace the Hardware with a suitable replacement together with any supporting Software. We shall provide this support as part of the Support Services for a period of 2 years after delivery of the Overall System to you. We warrant that all Hardware has been legally imported into whichever territory they are being sold from and all Hardware are genuine products which the manufacturer has authorised us to sell and, we shall not knowingly provide Hardware that is counterfeit, fake, assembled (without manufacturer’s authorisation) from cannibalised parts or that are in any other way non-genuine or not authorized for sale by the Hardware’s manufacturer.
1.13 Replacement Hardware shall only be shipped to you once the faulty unit has been returned to us unless agreed by both parties prior to shipment. In the event that Replacement Hardware has to be sent to you prior to receiving the faulty Hardware, then we reserve the right to charge you the replacement Hardware cost if the not received by us within 30 days of shipping the replacement Hardware.
1.14 In the event that Hardware is “out of warranty” and needs to be replaced, then we will charge you the replacement Hardware costs as per our current price list, which shall be an Additional Charge pursuant to these Terms.
SCHEDULE 2 – Support Packages
|Supported hours||Working Day||8.00 – 22.00 M-F||24 hours, 7 days a week|
|Outside Working Hours||None
Game Day support, 2 hours pre/post event (sports only)
|Telephone with response within 3 hours||Telephone with response within 3 hours|
|Contact with Tripleplay Support Center||Email/ Telephone||Email /Telephone||Email /Telephone|
|Provision of Maintenance Releases to resolve software issues||Yes – Subject to the Customer continually maintaining their support and maintenance Agreement and package for their Sites||Yes – Subject to the Customer continually maintaining their support and maintenance Agreement and package for their Sites||Yes – Subject to the Customer continually maintaining their support and maintenance Agreement and package for their Sites|
|Ability to receive a New Release of the Software once per annum at no license cost subject to Customer request and payment of engineering time||Yes, Annually
|Yes, Annually||Yes, when release available and Customer requests it|
|Engineer time for upgrade per Site for a New Release of Software||$___||$___
|Out of Hours (chargeable) Service available on request||Sat – Sun (09.00-17.30): $___ per hr
Mon – Sun (17:30 – 09.00) $___ per hr
|Sat – Sun (09.00-17.30): $___ per hr
Mon – Sun (19:00 – 08.00) $___ per hr
|Site Visit Charge Rates
|$___ per hour plus expenses||$___ per hour plus expenses||$___ per hour plus expenses|
|Customer reporting and review of Trouble Tickets subject to Customer request||Every 12 months||Every 6 months||Every 6 months|
|Warranties on Hardware||Standard manufacture warranty applies as per Section 1.11 of Schedule 1.|