1.1 “1CRM” means 1Stream’s CRM platform that provides customer relationship management functionality and detailed in Annexure G;
1.2 “1Stream Cloud Services” means services delivered by 1Stream to customers;
1.3 “Agreement” means this Master Services Agreement, including its Annexures, signed by the Parties hereto and referencing this Agreement;
1.4 “Annexure” means any Annexure to this Agreement;
1.5 “Business Day” means any day other than a Saturday, Sunday or recognised public holiday in South Africa;
1.6 “Business Hours” means between 08h00 and 17h00 inclusive on a Business Day;
1.7 “CallBI” means the speech analytics platform;
1.8 “Change” means alterations to the system configuration using the supervisor application and excludes customised alterations that require a developer;
1.9 “Cloud Contact Centre” means 1Stream’s contact centre platform that provides technical contact centre functionality and back office telephony;
1.10 “Confidential Information” means any information or data, in whatever format, relating to the business, affairs, policies, business plans, know-how, trade secrets, clients, technical information, finances or intellectual property of either Party, which is either identified as being confidential or which would reasonably be regarded as being of a confidential nature;
1.11 “Data” means any data, including Personal Information, supplied to the Processor by the Customer or Processed on behalf of the Customer by the Processor;
1.12 “Data Processing Agreement” means the agreement as set out in Annexure F;
1.13 “Data Controller” or “Responsible Party” means a public or private body that determines the purpose and means for processing personal information of a data subject;
1.14 “Data Processor”, “Processor” or “Operator” means a party that processes personal information on behalf of a Responsible Party, without coming under the direct authority of the Responsible Party.
1.15 “Data Protection Laws” means all applicable law relating to data protection, privacy and security when processing Data under the Agreement. This includes without limitation applicable international, regional, federal or national data protection, privacy, export or data security directives (e.g. directives of the European Union), laws, statures, regulations, rulings, decisions and other binding restrictions of, or by, any judicial or administrative body, whether domestic, foreign or international, including the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002) and the Protection of Personal Information Act, 2013 (Act No. 4 of 2013);
1.16 “Data Subject” means any person whose Personal Data is being collected, held or processed.
1.17 “Effective Date” means the date reflected on the cover page of this Agreement and is the date upon which the Agreement will commence;
1.18 “Licence/s” means the licences available as part of the 1Stream Cloud Services and defined in Annexure B;
1.19 “Parties” means 1Stream and Customer, and “Party” means one or the other of the Parties;
1.20 “Personal Data” shall mean personal data as defined in the Data Protection Laws, including any information relating to an identified or identifiable individual (including, but not limited to, name, postal address, email address, telephone number, date of birth, social security number, driver’s licence number, other government-issued identification number, financial account number, credit or debit card number, insurance ID or account number, health or medical information, consumer reports, background checks, biometric data, digital signatures, any code or password that could be used to gain access to financial resources, or any other unique identifier) that is supplied to the Processor by the Customer or Processed on behalf of the Customer by the Processor under the Agreement;
1.21 “Process/processing” shall mean any operation, or set of operations, performed on Personal Data, by any means, such as by collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction and “Processing” shall have a corresponding meaning;
1.22 “Resolve” means a permanent solution to a reported problem and may be achieved by repairing faulty equipment. The result would be no further action is required with regard to the reported problem.
1.23 “Respond” means acknowledgment of a service request, which will take place either during the initial logging of such a request or by means of a telephone call thereafter.
1.24 “Restore” means the restoration of the services to full functionality or at the least, to succeed in lowering the priority of the incident to the next lower priority level as set out in Table 3 of Annexure E.
1.25 “Scheduled Maintenance” means preventative maintenance as may be scheduled by 1Stream from time to time, as further described in clause 10;
1.26 “Service/s” means the services available as part of the 1Stream Cloud Services, as set out more fully in Annexure C;
1.27 “Service Levels” means the levels to which the Services will be provided as set out in Annexure E;
1.28 “Setup cost” means the cost paid by the Customer and includes the services required to take the Customers live on the 1Stream Cloud Services; as well as the once off training of end users.
1.29 “Sub-Processor” means any person appointed by or on behalf of the Processor to process Data on behalf of the Data Controller in connection with the Principal Agreement.
2 Term and Renewal
2.1 The term of this Agreement shall be 24 months, commencing on the Effective Date (“Initial Term”).
3 Provision of 1Stream Cloud Services
3.1 1Stream shall provide the 1Stream Cloud Services with all reasonable skill and care.
3.2 1Stream warrants to the Customer (i) that it will perform the 1Stream Cloud Services in accordance with all applicable laws; (ii) that it has, and will continue to hold, all necessary consents, licences and regulatory approvals to provide the 1Stream Cloud Services; and (iii) that it has and will continue to have all rights in and to the 1Stream Cloud Services.
4 Service Availability
4.1 Availability refers to the availability of the 1Stream Cloud Services and is a measure of its ability to enable the Customer to perform its core function.
4.2 The 1Stream Cloud Services will be housed in a secure data centre environment.
4.3 The 1Stream Cloud Services will be available on a 24x7x365 (twenty four hours per day; seven days per week; three hundred and sixty five days per year) basis other than during Scheduled Maintenance.
5.1 1Stream will provide support in accordance with the time frames set out in Annexure E Table 1 (Respond, Restore and Resolve Service Levels) as well as per Clause 7 (change management), during Business Hours only. Outside of Business Hours, only those Customers that have purchased “24 x 7 Support” will be provided with support, and only in respect of P1 and P2 incidents as defined in Annexure E.
5.2 All incidents and service requests logged will be provided with a unique incident reference number.
5.3 1Stream will use its best endeavours to Respond, Restore and Resolve service as detailed in Table 1 of Annexure E.
6 Data and Media Storage
6.1 Storage space is provided per customer for the system database and associated media files such as email attachments and knowledgebase documents. Additional storage is available on request.
6.2 Call recordings will be stored for a maximum of the agreed period after which they are:
6.2.1 deleted by default;
6.2.2 or transferred to Customer at an additional cost;
7 Change requests from Customer
7.1 All requests for Change will be reviewed by 1Stream in accordance with the change management process set out below:
7.1.1 Changes to the 1Stream Cloud Services that do not require a Service outage shall be implemented according to the agreed-upon timescales for their priority and impact.
7.1.2 Changes that require a Service downtime shall be implemented during the Scheduled Maintenance time slot.
7.1.3 A minimum 5-day notice period is required for all Customer Change requests.
7.1.4 Emergency Changes to the Service will take place by agreement.
7.1.5 All Change requests are to be made in writing.
8 Technology modifications
8.1 1Stream reserves the right to alter, modify, upgrade or update the 1Stream Cloud Services.
8.2 Any modification shall be communicated to the Customer in writing at least 72 hours prior to the said modification and should the modification be unacceptable to Customer, Customer shall notify 1Stream of any reasonable objections that Customer may have in respect of the change within 24 hours of date of 1Stream’s written notification. In the event that the Customer receives notification over a weekend, Customer has until the end of the next working day to respond. In the event that the Customer fails to do so, then Customer shall be deemed to have accepted the change. Should a reasonable objection be received by 1Stream, 1Stream will endeavour to accommodate the objection.
9 Scheduled Maintenance
9.1 From time to time 1Stream will schedule Scheduled Maintenance which in certain cases may lead to non-availability of the Service. Scheduled Maintenance may be attributable to, inter alia:
9.1.1 preventative maintenance;
9.1.2 systems moves or reconfigurations;
9.1.3 system testing of new systems/enhancements, and/or
9.1.4 implementation of new systems/enhancements.
10 Customer responsibilities
10.1 The Customer will be responsible for the following services; in the following ways:
10.1.1 Maintain the PC, LAN and internet infrastructure at the appropriate standard to be capable of supporting the 1Stream Cloud Services.
10.1.2 Managing operating hours and emergency messages.
10.1.3 Managing passwords and removing users from the system that no longer require access
10.1.4 Downloading reports and recordings.
10.1.5 Managing blocked telephone number lists.
10.1.6 Uploading dialler outbound leads (if not automated).
10.1.7 Provide logs to assist in fault finding.
11 Charges and payments
11.1 Customer shall pay the fees as specified;
11.2 Invoices will be issued in arrears on the 1st day of the month and are payable before the end of the month of invoice.
11.3 The cost of telephone calls will be invoiced in arrears.
11.4 The Licence fees will increase on the annual anniversary of the Effective date. Any increase in the Licence fees will be based on the Consumer Price Index (CPI) as published by Statistics South Africa as well as Exchange Rate fluctuations.
11.5 In the event of any dispute arising as to the amount or calculation of any fee or charge to which 1Stream is entitled, the Customer shall make payment in respect of any undisputed amount. The disputed amount shall be referred for determination to a mutually agreed third party in accordance with clause 18.1.
12 Limitation of liability
12.1 1Stream will not be liable to the Customer or other party for punitive, special, incidental, consequential, indirect or other similar damages, including, but not limited to, damages or costs incurred as result of loss of time, loss of data, loss of profits or revenue, or loss of use of equipment or software. In addition, 1Stream is not responsible or liable for damages or costs in connection with obtaining substitute equipment or software, claims by others, inconvenience or similar costs.
13 Suspension and cancellation
13.1 1Stream may suspend Services on written notice to Customer if any payment under this Agreement is not paid within 10 (ten) days of a written notice from 1Stream notifying Customer that such payment is overdue.
13.2 Without prejudice to other remedies available to it in terms of this Agreement, 1Stream may cancel this Agreement for default if Customer fails to:
13.2.1 Make any payment within 30 (thirty) days of invoice; or
13.2.2 Cure any other default within 30 (thirty) days, as the case may be, of receipt of written notice calling upon Customer to make payment or remedy the default in question.
13.3 Without prejudice to other remedies available to it in terms of this Agreement, Customer may cancel this Agreement for material breach if, upon receipt of written notice thereof, 1Stream fails to cure any default within 30 (thirty) days.
13.4 Either Party may terminate this Agreement with immediate effect if the other (i) a petition is filed, a notice is given, a resolution is passed or an order is made for or in connection with the winding up or insolvency of the other (other than for the purposes of a solvent amalgamation or reconstruction); (ii) an administrator is appointed over the other or an application is made for an administrator to be appointed; (iii) the other Party suspends or ceases or threatens to suspend or cease, to carry on all or a substantial part of its business; or (iv) any other event related to the other Party’s insolvency or imminent insolvency occurs.
13.5 Termination or cancellation of this Agreement will not affect any rights or duties arising under it with respect to Confidential Information or payment of charges.
14 Confidential Information
14.1 Each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information and to use such Confidential Information only as permitted under this Agreement. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information including, without limitation, disclosing Confidential Information only to its employees or agents (a) with a need to know such information, (b) who are parties to appropriate agreements or confidentiality obligations sufficient to comply with this clause, and the receiving Party shall take appropriate steps to implement and enforce such non-disclosure/non-use obligations.
14.2 The foregoing restrictions on disclosure and use shall not apply with respect to any Confidential Information which: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; or (iv) the receiving Party is legally compelled to disclose; provided, however, that prior to any compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third Party seeking disclosure and (b) reasonably co-operate with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
14.3 1Stream shall not (and shall procure that no member of its group shall) disclose in its advertising or publicity material or otherwise (including any electronic media) the existence of this Agreement or the terms of its relationship with Customer or any member of the Customer’s group without the prior written consent of Customer (which may be withheld in Customer’s absolute discretion).
15 Other provisions
15.1 Neither Party will be liable for failure to fulfil its obligations when due to causes beyond its reasonable control including, without limitation, the failure or delay of any supplier, Acts of God, strikes or lock outs which could not have been prevented by it (“Force Majeure”). If any Force Majeure occurs in relation to either Party which affects or may affect the performance of any of its obligations under this Agreement, it shall forthwith notify the other Party as to the nature and extent of the circumstances in question. Neither Party shall be deemed to be in breach of this Agreement, or shall otherwise be liable to the other, by reason of any delay in performance, or the non-performance of any of its obligations under this Agreement to the extent that the delay or non-performance of that obligation is due to any Force Majeure of which it has notified the other Party and the time for performance shall be extended accordingly. If the performance by either Party of any of its obligations under this Agreement is prevented or delayed by Force Majeure for a continuous period in excess of 10 (ten) days, the other Party shall be entitled to terminate this Agreement by giving written notice to the Party so affected, whereupon all money due for Services performed up to the point of termination under this Agreement shall be paid immediately, and in particular Customer shall pay to 1Stream all arrear payments for Services performed. For the avoidance of doubt, Customer shall have no liability to pay any charges in respect of any period during which 1Stream was prevented from performing its Services as a result of Force Majeure.
15.2 Any failure or delay by either Party in exercising any right or remedy will not constitute a waiver.
15.3 This Agreement may be modified or added to only by a written addendum signed by a duly authorised representative of each Party.
15.4 Each paragraph and provision of this Agreement is severable, and if one or more paragraphs or provisions are declared invalid, the remaining provisions of this Agreement will remain in full force and effect.
15.5 The Customer shall not copy, modify or reproduce any part of the Service in any way or reverse engineer, disassemble, or decompile the software.
15.6 In this Agreement, the words detailed hereunder will have the meanings assigned to them unless the context clearly indicates or requires otherwise. Any Annexures to this Agreement are incorporated herein and form an integral part hereof.
16 Governing Law and Arbitration
16.1 In the event of any dispute or difference arising between the Parties relating to or arising out of this Agreement, including the implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, the Parties shall forthwith meet to attempt to settle such dispute or difference and, failing such settlement within a period of 14 (fourteen) days, the said dispute or difference shall be submitted to arbitration within South Africa in the English language and finally resolved in accordance with the rules of the Arbitration Foundation of South Africa, by an arbitrator or arbitrators appointed by that Foundation.
16.2 The provisions of this clause shall continue to be binding on the Parties, notwithstanding any termination or cancellation of this Agreement.
16.3 This Agreement shall be governed by and construed in accordance with South African law.
17.1 Services to be provided in terms of this Agreement do not include the provision of services, nor repairs or replacements to the extent caused by:
17.1.1 Damage caused by accident, fire, water, lightning or other act of God, war, riots, civil disorder, acts of violence, sabotage or similar acts;
17.1.2 The restoration of lost data from any Services or equipment connected to Services (provided such loss is not caused by a breach by 1Stream of this Agreement);
17.1.3 Any changes or modifications to Services, which are required as a consequence of any technical or regulatory changes introduced by the appropriate regulatory authorities.
17.1.4 Unavailability or interruption of telecommunication systems, power systems, third-party suppliers or services or failure of third-party software;
17.1.5 General third-party telecommunications or network failure.
17.1.6 Software problems or failures occasioned by virus infection. The Customer will be solely responsible for ensuring that anti-virus software is both installed and maintained with the latest versions unless otherwise contractually agreed to.