EASYNET CHANNEL PARTNERS LIMITED PARTNER MASTER SERVICES AGREEMENT HYBRID CLOUD IT PRODUCT TERMS

Transcription

1 EASYNET CHANNEL PARTNERS LIMITED PARTNER MASTER SERVICES AGREEMENT HYBRID CLOUD IT PRODUCT TERMS Registered Office at: St James House Oldbury Bracknell RG12 8TH Company No: BMI MSA Hybrid Cloud IT Service v1.0 Page 1 of 9

2 The following terms and conditions ( Product Terms ) apply in addition to those in the General Terms and Conditions (Schedule A) (GTC/GTC s) where, pursuant to an accepted End User Order, the Partner orders the Hybrid Cloud IT service as further defined and set out in these Product Terms (the Service ). 1. Additional Definitions Availability is a measurement of the amount of time during a specified period that the Service has operated without Service Loss. Connectivity Service has the meaning defined in Paragraph of this Annex. Critical Fault is any Fault that results in a critical service component becoming unusable or inaccessible and where no workaround exists that does not have a significant detrimental effect on user productivity. Critical Service Component is a software component that forms part of the Service access to which is deemed to be critical to the effective and efficient use of the Service. The Critical Service Components are (a) access to the Internet, (b) access to files that you are authorised to access and that are stored on the Easynet Hybrid Cloud Solution, (c) access to your to send and receive messages (if Exchange is hosted as part of the Easynet Hybrid Cloud Solution), (d) User authentication and (e) remote access through a VPN connection (if subscribed). Customer, you and your are terms that are used when referring to the company or organisation that will actively use the Service on its premises. Disaster is an event that renders the Service unusable and inaccessible either (a) indefinitely (as a result of destructive event), or (b) for a limited period known to be in excess of 5 working days (as a result of an event that renders it unusable even if not completely destroyed). Examples of events that would be considered to be a Disaster would include natural disasters such as floods, fires, equipment theft and catastrophic hardware failure (such as file system corruption, multiple hard disk failures and virtual machine corruption). Easynet Hybrid Cloud IT Solution is the pre-configured solution deployed on your premises that comprises both the Zynstra Hybrid Cloud Software and a server computer (or cluster of server computers for certain Service Editions). End User means an end user of the Service that has been purchased by the End Customer. EULT means the licence terms notified by Supplier of any software incorporated into or supplied with the Services, including without limitation the Microsoft Licence terms which are available on the Portal. Fault is deemed to have occurred if any component of the Service consistently fails to operate as we would expect it to operate at any time other than during the Scheduled Maintenance Window. Faults would be most likely to have occurred as a result of a software defect, a hardware component failure or an Internet connection failure. Minimum Term of each Subscription shall be 12 months from the Service commencement date and, unless terminated by either Party giving 90 days written notice, shall automatically renew for a further 12 month period. Normal Office Hours are the period of time that starts at 0900 and ends at 1730 on weekdays excluding weekdays that are public holidays in the country in which your premises are located. BMI MSA Hybrid Cloud IT Service v1.0 Page 2 of 9

3 Portal means Supplier s online portal in relation to the Services which will be made accessible to Reseller the details of which shall be made available on request. Record means information pertaining to the sale by Supplier of any Subscription including but not limited to the names and addresses of each End Customer, end user, transaction date and amount, and the specific terms and conditions relating to each transaction. Scheduled Maintenance Window is the period of time between 2200 and 0600 on weekdays in the country in which your premises are located and all day at weekends. Server means the Zynstra server(s) that are provided to End Customer as part of the Service for the duration of the Service. Title in each Server shall remain with Zynstra and accordingly each Server shall be considered Supplier Equipment for the purpose of the Agreement. Service means the Hybrid Cloud Service described in Paragraph 4 of this Annex. The number of Subscriptions applicable to the Service in respect of each End Customer shall be identified in the applicable Order. Subject to the number of Subscriptions remaining within the same pricing band stipulated in the Easynet price list, the Minimum Term of the Service that is specified in the Order shall apply to all Subscriptions of the Service for that End Customer. Service is an Information Technology (IT) service founded on the Cloud Computing model that enables small to medium sized businesses to enjoy feature-rich, high performance, robust and secure IT without the need for substantial capital expenditure and at an attractive, recurring fee per employee. The Service refers to the particular Service Edition that you select. Service Credit is a form of compensation offered to Customers who have purchased certain Service Editions if certain annual performance targets have not been met. Service Credits, if offered, are in full and final settlement of any under-achievement and are limited to the total value of the next quarterly invoice following the periodic review of Service Level Achievement which is an annual process. Service Description means the description of the Subscription entitled Zynstra Hybrid Cloud End User Spec which can be accessed at the Portal, as may be amended from time to time in accordance with Paragraph 2.19 of this Annex. Service Edition is a packaging of the features and functions of the Service with a associated set of performance targets for grade and quality of service. Different Service Editions exist to address the varying needs of different types and sizes of company. The available Service Editions are defined in the then current version of the Easynet Hybrid Cloud End-User Specification. Service Loss occurs when a Critical Fault has caused a Critical Service Component to become inaccessible or unusable at any time during Normal Office Hours. Service Provider and we are terms that are used to refer to the company with whom you contract in order to be able to use the Service. This will either be Zynstra or a Managed Service Provider ( MSP ) actively supported by Zynstra. SLA means the service levels applicable to the Subscription which can be accessed at the Portal, as may be amended from time to time in accordance with Paragraph 2.19 of this Annex. Software means the Microsoft and other software provided by Supplier to the End Customer which (a) provides functionality on the Server and (b) is accessible by the End Customer as part of the Service. Subscription means the end user license to use the Service. User is a person working for or on behalf of the Customer who is registered in the Active Directory that forms part of the Service. BMI MSA Hybrid Cloud IT Service v1.0 Page 3 of 9

4 Zynstra means Zynstra Limited, a company registered in England and Wales under company number whose registered office address is at Bath Ventures, The Innovation Centre, Broad Quay, Bath, BA1 1UD. Zynstra Hybrid Cloud Software is the software product developed by Zynstra that is the software foundation for the Service. 2. The Service 2.1. The Service is comprised of the following elements: The Server and Software, which shall be provided in accordance with the Service Description, SLA and EULT; and the relevant connectivity service which is purchased from Supplier as part of the Service details of which shall be set out in the Order, and which shall be provided in accordance with Supplier s standard terms and conditions applicable to that connectivity service. For the avoidance of doubt, the general terms and conditions applicable to the Connectivity Service (including without limitation provisions relating to payment, liability and termination) shall also apply to the Service save to the extent expressly provided in this Annex The Service shall comprise one or more Subscriptions per End Customer End Customer shall not be entitled to use the Service if it is established in a country outside of EMEA (i.e. all European nations, extending east to Iran, but including Russia and all African nations) End Customer may use the Service to provide its own products or services to its own customers or allow its customers to access the Service where this is necessary for End Customer to successfully deliver its products and services. Notwithstanding the foregoing, End Customer shall not be permitted to sell or transfer the Service or Subscriptions to any third party except where expressly agreed in writing by Supplier End Customer shall comply with the EULT and shall procure compliance with the EULT by each End User Supplier is not responsible for the compatibility of End Customer applications used with the Services but Supplier may provide advice and guidance in connection with the same on a reasonable efforts basis The Site details of the End Customer may not be changed without Supplier s prior written consent End Customers shall agree to a mutually acceptable press release by Supplier and/or Zynstra within the first 90 days of the Service to End Customer announcing the same and shall not publish any press release or other public announcement concerning the Service without Supplier s prior written consent End Customer shall ensure that administrative privileges in respect of the Service are only assigned to suitably experienced persons who are sufficiently familiar with the Service and that such persons protect their passwords and generally observe good information security practice End Customer may not create direct obligations between Supplier or Zynstra and any End User. BMI MSA Hybrid Cloud IT Service v1.0 Page 4 of 9

5 2.11. End Customers must maintain any reasonable environmental, systems and operational requirements which are specified by Supplier End Customers must not attempt to repair, adjust, modify or interfere with any software or equipment used or supplied by Supplier nor attempt to circumvent any security measures put in place by Supplier or interfere with any monitoring systems installed by Supplier. End Customers must reasonably co-operate with any requests from Supplier concerning such systems and with any monitoring or reporting requirements. End Customers must insure against loss and damage of the hardware supplied by Supplier as part of or in connection with the Services Any documentation supplied by Supplier may only be copied and used in connection with the proper use of the Services End Customers must accept that computer systems in general cannot be free of errors or interruptions and agrees that the existence of the same shall not constitute a breach of this Agreement If a fault in the Service is due to the acts or omissions of End Customer, any target time to correct a fault shall not apply and Supplier may charge at its standard rates for any significant effort in fixing the fault The support provided by Supplier as part of the Service does not include consultancy, user familiarisation or training Supplier may, in its discretion, assist with any problems relating to the Services which are excluded or not covered by the SLA and shall advise End Customer in advance of any charges relating to such assistance. Any such assistance will be provided on a reasonable efforts basis only and the timescales set out elsewhere shall not apply End Customer shall provide such information and access that Supplier may reasonably require to analyse a fault with the Service Supplier may (either directly or via Zynstra) make changes to the Service Description, SLA or EULT by notifying End Customer and such changes shall be effective on either the 1st January or 1st July of each year. Where a change may reduce the rights or benefits of End Customer then it shall be entitled to terminate the Server and Software element of the Service without liability End Customer shall be solely responsible for any commitment made by End Customer to an End User in relation to the Service which goes beyond the commitments provided in this Annex. The terms of any agreement entered into between End Customer and any End User shall not be binding on Supplier or its suppliers During the Term of the Service, End Customer is hereby granted a non-exclusive licence to use the Software and Zynstra s intellectual property in the Server, Software and accompanying materials that are provided to End Customer in relation to the Service, including Zynstra s name and trademarks, logos and other designations or brands used in connection with the Service (collectively, the Marks ) as permitted by the Agreement. Such licence is expressly limited to uses necessary or appropriate for End Customer s performance of the Agreement and as set forth in any reasonable general instructions issued by Supplier from time to time. Any references to Supplier or Zynstra or the Service by End Customer shall be truthful and not misleading and shall designate Zynstra as the rightful owner of the Marks End Customer shall not remove or deface any Marks appearing on the Server or materials relating to the Service that are provided to End Customer. Supplier reserves the right to disallow BMI MSA Hybrid Cloud IT Service v1.0 Page 5 of 9

6 any use of the Marks which would, in Supplier s reasonable opinion, harm the validity or value of the Marks End Customer shall pay Supplier the Charges in respect of the Services ordered pursuant to this Agreement in accordance with Supplier s current price list as amended from time to time Supplier is entitled to invoice End Customer for the Charges from the date that End Customer is notified that the Subscription is activated, which means that users can be registered in Active Directory Title to the Server and the Software, including without limitation all rights in relation to the Software or any copies of Software made available in connection with the Service, is retained by Zynstra. Except to the extent such restrictions are prohibited under applicable law, End Customer agrees not to decompile, disassemble, or otherwise reverse engineer the Software or any software made available in connection with the Service. End Customer may not use the Service or any Confidential Information or intellectual property of Supplier or Zynstra that it may receive in connection with the Service to develop, have developed, assist in the development of, support, or invest in, directly or indirectly, any product which has, entirely or partially, the same functions as the Subscription or Service or which would be in direct or indirect competition with the Subscription or Service End Customer shall not acquire ownership of any hardware supplied as part of or in connection with the Services and End Customer shall not permit or create any charge, claim, encumbrance or lien over such hardware. 3. Termination In addition to the termination provisions set out in the Agreement and in the terms relating to the Connectivity Service, the following provisions shall apply in relation to the Service Supplier may terminate the Agreement in respect of the Service in the event of a material breach by End Customer of any of the End Customer s obligations under the Agreement including without limitation the obligation to pay the Charges Save where Supplier terminates the Agreement as a consequence of End Customer s breach the above paragraph or as a result of the End Customer s insolvency, no termination of the Agreement in respect of the Service shall take effect until the expiry of the Minimum Term applicable to each Subscription. In the event that Supplier terminates the Agreement as a consequence of End Customer s material breach or insolvency, End Customer shall use all reasonable endeavours to procure and facilitate the novation of any Subscriptions of End Customers wishing to continue use of the Service to either Supplier or one of its authorised resellers In the event of a termination of the Agreement in respect of the Service for any reason, End Customer shall return the Servers and Software to Supplier or Zynstra (as Supplier shall reasonably direct) within 21 days of the Service termination date. 4. Availability Availability of the Critical Service Components is checked automatically by the Easynet Hybrid Cloud Solution every five minutes, every hour of the day and every day of the year and is published to you on a monthly basis. The sole periods of time when you should expect to experience a Service Loss are within the Scheduled Maintenance Window. Any Service Loss that occurs during the Scheduled Maintenance Window is excluded when determining the achieved Availability. There are two planned BMI MSA Hybrid Cloud IT Service v1.0 Page 6 of 9

7 Service Losses that occur during this window: (a) a loss of no more than three minutes each night when the backup process is initiated, and (b) a loss which is typically a few minutes but can be longer in certain circumstances during the application of periodic patches and upgrades which occur no more often than weekly. Service Loss during the Scheduled Maintenance Window is excluded when calculating Availability achievement as is any loss that is the result of force majeure; that is, circumstances beyond our reasonable control. The measurement of Service Loss outside the Scheduled Maintenance Window starts when you first notice the service interruption and report it to us or when we detect the issue ourselves and our support team has been notified of this, if earlier. It ends when it has been demonstrated to your full satisfaction that the Service is available again. The Availability achievement target varies by Service Edition as different Service Editions are designed to achieve different levels of reliability and resilience: Service Edition Service Credits are offered for the Professional Service Edition if Availability achievement over a period of three calendar months falls below the target specified above provided that the Service Provider has fulfilled the timescale obligations on them that are identified in the Fault Resolution Service Level Agreement. 5. Disaster Recovery Target Availability Disaster recovery is the process of restoring the Service to its normal operating state following a Disaster. The Service will be recovered on alternative premises if your premises are no longer usable or accessible. Disaster recovery performance is assessed based on a Recovery Point Objective (RPO) (the maximum allowable period of time for which any data that has been created or changed in that period may be lost as a result of a Disaster) and a Recovery Time Objective (RTO) (the maximum time that it should take to restore the Service in full to its state no earlier than the time defined as the RPO). RTO performance is divided into two stages: Service Credits Group % Not applicable Professional 99.5 % One hour of Service Credit for each hour of service loss in excess of the target Essential: The maximum time to restore essential features of the Service, these being (a) sending and receiving s and accessing s sent or received in the last 5 working days, and (b) working on documents created or modified in the last 5 working days. Full: The maximum time that it should take to restore the Service in full including all s and documents up to a point in time no earlier than the RPO. BMI MSA Hybrid Cloud IT Service v1.0 Page 7 of 9

8 Service Edition RPO 1.WD means working days and represents the number of full working days required to restore the Service following your report of the disaster to your MSP. 2.Achievement of RTO (Full) assumes that the internet connection at any alternative premises occupied following the disaster will not be inferior to that on the original premises. If the need for a new Service following the disaster is temporary (that is, the original premises will be occupied again at some point), the internet connection at the alternative premises will not be upgraded if it is of an inferior specification and the hardware installed may not have the same degree of resilience as installed on the original premises. Both will become as per the original specification once RTO (Essential) has been achieved if the alternative premises are to become permanent. Service Credits are offered for the Professional Service Edition by Easynet if essential RTO achievement in relation to a single disaster falls below the target above. 6. Fault Resolution Fault resolution is the process of restoring the Service to its normal operating state following the occurrence of a Critical Fault. Fault resolution process effectiveness is assessed on the basis of (a) response time (the time to acknowledge any issue you report that is subsequently determined through analysis to have been caused by a Critical Fault) and (b) resolution time (the time taken to resolve a Critical Fault and return the Service to its normal operating state measured from the time at which you first reported the issue to Easynet) For Software Faults RTO (Essential) 6.2. For Hardware Component Failures RTO (Full) Service Credits Group 48 hours 5 wd 1 10 wd 1,2 Not applicable Professional 36 hours 2 wd 1 5 wd 1,2 1 day of Service Credit for each full working day beyond the essential RTO Service Edition Response Time Resolution Time Group 4 wh 1 End of Normal Office Hours on the next wd 2 Service Credits Not applicable Professional 2 wh 1 4 wh 1 1 hour of service credit for each full working hour beyond the resolution time target BMI MSA Hybrid Cloud IT Service v1.0 Page 8 of 9

9 Service Edition Response Time Resolution Time Group 4 wh 1 End of Normal Office Hours on the next wd 2 Professional 2 wh 1 End of Normal Office Hours on the next wd 2 Service Credits Not applicable 1 hour of service credit for each full working hour beyond the resolution time target 1.WH means working hours and represents the number of hours taken to respond based on a measurement which accounts for Normal Office Hours only and which may therefore extend into the next working day. 2.WD means working days and represents the number of full working days required to reinstate the Service. It is our target that Critical Faults will be resolved by the end of Normal Office Hours on the day following the initial report of the issue. Critical Faults may be corrected using a replacement component, a permanent workaround that does not degrade functionality or productivity, a patch or a new release. Critical Faults whose root case lies in the Easynet Hybrid Cloud Software shall be rectified within the target resolution times above by either (a) restarting solution components, (b) adjusting the configuration of the solution or (c) implementing a work-around to the Software Fault. The correction, testing and release of the underlying software in which the Software Fault exists shall not be performed within the target resolution times above as this would be create material risk for the Customer. Software corrections will be applied as part of a future software patch or release. The achievement of the targets above shall be entirely dependent on the accurate and responsive communication of issues to Easynet from the customer. For the above targets to apply and for service credits to be applicable to a particular issue that is determined to be a Critical Fault, the customer shall report the issue to Easynet within one working hour of its receipt. BMI MSA Hybrid Cloud IT Service v1.0 Page 9 of 9