Service Agreement

Effective: JULY. 1, 2020

This service level agreement is made
BETWEEN:
Topzoft Technology Solutions (Smart School Master) (the “Service Provider”).

AND:                    The Client an Educational Institution
(Each a “Party”, and, collectively, the “Parties”)
References to all Parties shall include their successors in title, agents and assigns.
WHEREAS: The Service Provider is in the business of design, development and deployment of Software, web and mobile applications. II) The Client wishes to engage the services of the Service Provider to provide of educational portal services and related services specified in this Agreement
III) The Parties have agreed enter into this Agreement subject to the terms and conditions provided in this Agreement.
NOW, in consideration of the mutual covenant and agreement herein contained, the parties hereto intend to be legally bound as agreed as follow:

1.0 Statement of Intent

‍The aim of this agreement is to provide a basis for close co-operation between the Service Provider and the Client, for services to be provided by the Service Provider to the Client, thereby ensuring a timely and efficient service. This agreement is contingent upon each party knowing and fulfilling their responsibilities and, upon an environment conducive to the achievement and maintenance of targeted service levels.
‍

1.2 Duration

‍This Agreement is valid from the Effective Date outlined herein. This Agreement will commence on the date first above written and shall subsist until further notice subject to the termination or review in accordance with the terms of this agreement.

2.0 Services Provided by the Service Provider

‍The Service Provider will provide the following services to the Client:

2.1 Responsibility of the Client.

2.1.1.
The Client is expected to perform the following responsibility to ensure the smooth running of the Services to be provided by the Service Provider.

2.1.2.
‍ The Client’s additional responsibilities and/or requirements in support of this Agreement include:

1. Payment for all fees at the agreed interval.
2. Communicating/reporting specific service issues timely

iii. Reasonable availability of Clients’ representative(s) when resolving a service-related incident or request.
‍
2.1.3.
‍The Client shall make available personnel with necessary business and technical knowledge and skills to advise the Service Provider on the requirements of the Client.
‍
2.1.4.
The Client shall disclose all information necessary to enable the Service Provider to design, plan, develop, integrate, implement and test the System to meet the Specification.
‍
2.1.5.
The Client shall perform its responsibilities under the Agreement in accordance with the time scales in the Plan or as may otherwise be agreed with the Service Provider.
‍
2.1.6.
The Client shall provide reasonable and agreed computer, and other facilities necessary for the Service Provider to provide the Services.

3.0 Support Services
‍
The Client is only entitled to processing ability and support services while this Service Level Agreement is valid and the Client has a valid subscription.

3.1 Channels of Support and Hours of Operation
‍
A customer service representative will be available to provide support functions between the hours stated below unless in cases of emergencies or alternative arrangements have been agreed to.

The primary channel of communication for the parties shall be Email and Online Chat on the portal, hence the Client is required to check the mail addresses provided to us. Also, a follow up channel communication such as phone calls, SMS and WhatsApp will be utilized as well to communicate with the Client as appropriate.
‍
3.2. School Portal Setup and Configuration:

‍This is in two stages:

1. Configuration Portal creation, School name, URL, set up of subject names, class names etc.
   2. Customization                   website customization.

Please note that Configuration/setup will be done within 48hrs (2 business days) while website customization timeline will be communicated when the school provides the requirements, information and documents required. Complete customization can take between 2- 20 working days subject to the nature timeframe of submission of complete requirement.
‍
3.2.1   Documents to be submitted:
The following documents are to be filled and submitted within 3 working days: For the configuration/setup of your Smart School Master Portal if applicable.
i. Completely filled requirement gathering forms by the Client Including: School report sheet grading. Other report templates (Id Card, Admit Card, Certificates etc.).
ii. Completely filled Payment Integration Form & KYC (Know Your Customer). To be submitted to the Service Provider’s representative via mail. This form will enable the Service Provider to setup the Client’s online payment gateway.
iii.       Softcopy of the Client’s logo.
iv. All reports templates sent must firstly be approved by the Client’s management before sending to avoid scope changes.
Please be informed that failure to submit the above documents will result to late configuration and setting up of your school portal. The Service Provider shall not be liable for failure of the Client to submit all or part of the requirements, documents or information required in this instance the Client will not be entitled to refund of monies paid
‍
3.3. Support Descriptions:
‍
3.3.1.
 The Client shall send an email to the Service Provider’s email  [email protected] for support services.
‍
3.3.2.
Supports sent to [email protected] will be resolved between 30 minutes and 7 working days provided: It is not a change of template. The support is sent not later than 2 weeks before midterm break. The support is sent not later than 3 weeks before vacation. It is not a request for a new feature or module
‍
3.4 Exclusion to support services
‍
3.4.1.
  The Service Provider will make every effort to solve critical and high severity errors reported by the Client within a reasonable time frame and to the satisfaction of the Client
‍
3.4.2.
The Service Provider will however not be responsible for correcting errors not attributable to Service Provider’s products and services like power failure, bad internet service, data input error from the Client, computer misbehaviours etc. Errors attributable to the Service Provider are those that can be reproduced by the Service Provider Products and Services which is either unmodified or modified by the Service Provider.
‍
Accident, negligence, or misuse of the software.
Interconnection of the Software with other software products not supplied or approved in writing by the Service Provider.
‍
3.5 Availability of services
‍
3.5.1
  The Service Provider will ensure that SMART SCHOOL MASTER or services rendered by the Service Provider are available for at least 99.00 % on average per month.
Availability is measured for the system as a whole, excluding unavailability caused by a general Internet Service disruption owing to an itch in the server of the Internet Service Provider or such failures that is reasonably beyond the control of the Service Provider or operational hindrances, which the Client cannot be held responsible for, or disturbances from external sources – like power failure, computer misbehaviours etc.

3.5.2.
The Service Provider is not liable for errors made worse as a result of a failure by the Client to timely notify the Service Provider of errors in the system immediately it is noticed before any action is taken by the Client, or if the Client fails to take appropriate corrective action in accordance with the standard maintenance instructions, resulting in an error or outage.
‍
3.6 Backup and Restore plan
‍
‍All services covered by this Agreement are backed up regularly, the backed-up data is placed at a secure location to ensure data separation.
If it is deemed necessary to restore service data from a backup, the restore process can impact the service availability for two (2) or more working days depending on the size of the data. Where this occurs, the Client will be informed via official release notes or service notifications via an email from the Service provider.
The objective of the backup and restore plan is to ensure that the Service Provider is able to respond to a disaster or other emergency that affects data and minimize the effect on the operation of the business.
‍
3.7. Service Windows
‍
3.7.1. Maintenance and Upgrade window
‍
To ensure stability and minimum impact on the Client maintenance and upgrades will be done during weekends, public holidays, overnight or school holidays and will be communicated via official releases, notes, or service notifications to the Client.
‍
3.7.2. Communication about emergency maintenance and upgrade

‍In case of emergency maintenance or upgrades due to fatal errors in the production system or fatal errors in the software, an emergency service window will be communicated via official release notes or service notifications to the Client.

3.7.3. Communication about disturbance or downtime In case of unscheduled downtime or instability of the services covered by this Agreement, information will be communicated via official release notes or service notifications to the Client.

3.7.4.  Communication about emergency maintenance, disturbance or downtime will contain the following information: A timestamp of the downtime or instability.
A description of the impact on the Customer’s services or configuration.
An estimated resolution time.

4.0 Software Quality

‍The Service Provider will apply appropriate process and practices in order to deliver high quality software to the Client containing as few defects as is practical. Defects can include the following: Software bugs (e.g. errors or faults in source code or design that cause an application to produce an unexpected result). Software that is made up of working code but does not meet the initial requirements laid out by the Client and described in the Client’s specifications.

5.0 BILLING ARRANGEMENTS AND REFUND POLICY

‍Bills are based on the Subscription plan subscribed to by the Client for the payment circle. Bills will be charged at the current billing rates of the Service Provider.
‍
5.1 Payment Cycles:

‍Jan 1 to April 30^th

May 1 to August 31^st

September 1 to December 31st
Payment for multiple payment cycles is encouraged e.g two terms, one or more sessions.

‍5.2 Non-Payment

‍If the Client fails to pay her bill before the start of a payment cycle, provision of services by the Service Provider to Client will cease after a seven (7) days grace period.
‍
5.3 Data Expulsion

‍If the Client fails to renew her subscription for more than fifty (50) days the Service Provider has the right to delete the Client portal and all associated data from her Server.

‍5.4 Requests for Extra Services or Features

‍If the Client requests for a feature or service not listed in the subscription plan paid for, an invoice for such service or feature will be raised in line with the current billing rates of the Service Provider.

5.5 Non-Usage

‍In the event that the Client makes  a subscription within any of the payment circle and the Service Provider has deployed, trained and configured the portal, but the Client does not make use of the service, the Client will not be indemnified or compensated with a roll over  and the payment will expire in that period subscribed for.

5.6 Non-Refund Policy

‍We operate a no-refund policy, upon payment the Client’s portal will be setup and onboarding will start within 48 hours. If the Client is not able to make use of the service for failure of service from the Service Provider, a rollover of payment or appropriate discount will be applied for the next payment cycle. However, rollover and discount does not apply if the non-usage is as a result of negligence or default on the responsibilities of the Client defined in clause 2.1

6.0 TERMINATION OF SERVICE

‍Either the Client or the Service Provider can terminate this agreement with a written notice in the following circumstance:

6. Where a party commits a material breach or default of the Agreement and fails to remedy the breach or default 30 (thirty) days after receiving written notice from the other party specifying the breach or default.
   ii. Upon the occurrence of insolvency of a party or the filing by or against the party of voluntary or involuntary petition in bankruptcy or for corporate reorganization or for any similar relief or the execution of an assignment by the party for the benefit of creditors or the appointment of a receiver of the party for any reason.
   In such instance, the Client will not be entitled to refund where the portal has been activated, however if the portal has not been activated then the Service provider will be required to refund the Client in full.
   
   6.1 Termination by the Client

   ‍

   The Client may terminate this agreement by giving the Service Provider a written notice at any time after the minimum of period of 12 months of engagement and before her current subscription expires and will be liable for all work fees incurred up to that time. If the Client does not provide such a notice, it will be obliged to pay all fees work done and for other charges incurred. Below are some criteria that can warrant termination by the Client:

7. where the Service Provider does not comply with this Agreement. ii. Where the Client forms the option, on reasonable grounds, that mutual confidence and trust do not exist between both parties; or iii. Where the Client believes on reasonable grounds that, by continuing to work with the Service Provider, there may be a breach of the rules of professional conduct which are biding upon professionals in the Education Sector. The following will apply once the Client request for a termination of service:
   All proprietary Client’s data passwords will be turned over to the Client upon request, within 72 hours of written notice of intent to terminate the SLA. These requests must be sent via email to [email protected]. Client Information will not be surrendered if the Client has outstanding payments.
   ‍
   6.2 Termination by the Service Provider

   ‍

   The Service Provider may terminate this agreement and stop acting for the Client at any time by providing a written notice if: The Client does not comply with this Agreement. Service Provider forms the opinion, on reasonable grounds, that mutual confidence and trust do not exist between both parties; or Service Provider believes on reasonable grounds that, by continuing to act for the Client, it may breach the professional conduct rules which are biding upon professionals in the Software industry. Where the Client defaults in the payment of any amount due under this Agreement and fails to make full payment within 15 (Fifteen) days after receiving written notice from the Service Provider, the service provider may terminate this Agreement immediately, in whole or in part by written notice to the Client.
   ‍
   6.2.2.
   ‍In the event that the termination of this Agreement is due to the default of the Client, without prejudice to any other rights and remedies which the service provider may have under this Agreement and the applicable law, the Client shall promptly make full payment to the Service Provider for All Services or part of Services, executed according to the provisions of this Agreement prior to the date of termination; and
   ‍
   6.2.3
   Should any other cause lead to the termination of this Agreement, The Client  shall within one (1) month of the date of termination, pay to the service provider the proportion of Price applicable to the Price of Services performed prior to such termination, together with any additional sums properly expended on behalf of the Client by the service provider in carrying out the Client’s termination.
   ‍
   6.2.4
   Upon the termination of this Agreement, the Client shall promptly return to the service provider (or otherwise dispose of as the service provider may instruct) all Documentation and/or materials (in hard and soft copy) and/or any copies or extracts thereof containing confidential and/or proprietary information as define  and certify to the Service provider  in writing within thirty (30) days that the Client  has fully complied with the foregoing obligations
   ‍
   6.3 Reconnection Fee
   ‍If the Client intend to reconnect to our service or a Client exited due to section 5.2, 5.3, 6.0-2 and intend to return to the service, the service provider upon such request will prepare a bill which will include reconnection fee.
   
   7.0 Arbitration

   7.1.

   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 30 (thirty) days from the date of notice either Party may submit the dispute or difference for arbitration by either party submitting a notice of arbitration to the other party.
   ‍
   7.2.
   A sole arbitrator shall be appointed by the parties and when parties are unable to agree on an Arbitrator within 14 (fourteen) days of the notice of Arbitration being issued the parties shall apply to the Chartered Institute of Arbitrators (United Kingdom) Nigeria branch to appoint an Arbitrator over the dispute.
   ‍
   7.3.
   The place of arbitration shall be Nigeria and the language of arbitration shall be English. The arbitration shall be conducted in accordance with the Arbitration and Conciliation Act (2004)
   ‍
   7.4.
   The provisions of clause 7 shall continue to be binding on the Parties, notwithstanding any termination or cancellation of this Agreement.

   7.5.
   The cost of the arbitration shall be shared equally by the parties where any of the parties is dissatisfied with the outcome of arbitration, or arbitrators could not be appointed within 30days after the breach was noticed, owing to the attitude of any of the parties, then any party hereunto may directly exercise its right to legal action at the Enugu Multi Door Court only with no appeal proceeding there from.
   ‍
   8.0 Security and Data Integrity

   1.
   The Service Provider may identify security risks, breaches, or other liabilities and make specific recommendations in writing to the Client for the resolution of these risks. The Service Provider cannot be held responsible for such exploited security threats.
   ‍
   2.
   From time to time The Service Provider may identify threats and may recommend and undertake immediate action to protect the Client’s data without prior authorization. While this is rare, notice of this action will be given in the earliest reasonable time after work occurred, including details of what the specific issue was and why immediate action was necessary.
   ‍
   3.
   It shall be the duty of the Client to protect her passwords, log in details, data, and confidential information from hacking, phishing, or any other illicit use of such sensitive information. The Client shall have a duty to ensure that concerned employees (permanent or otherwise), and former and employees are bound by a covenant of secrecy.
   ‍
   4.
   The Service Provider undertakes to guard the data privacy of the Client with the standard of care that is reasonably expected of a man of skill within the industry.

   Confidentiality and Non-disclosure

   ‍In order to provide Support Services as described herein, the Parties will necessarily be privy to and have access to sensitive data. The Parties agrees to take all reasonable measures and best industry practices to keep all files, information, passwords, and any other proprietary data secure and confidential.
   Parties shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Receiving Party. The Parties shall carefully restrict access to Confidential Information to employees, contractors, and third parties as is reasonably required.
   The Parties shall not, without prior written approval of the other Party disclose to others, share, alter or permit the use by others for their benefit or to the detriment of the other party, any Confidential Information. The Parties’ obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly (b) The Disclosing Party before disclosure by the Receiving Party; (c) learned by the Parties through legitimate means other than from the other Party. The Non-disclosure provisions of this Agreement shall survive the termination of this Agreement.
   ‍
   9. 0. Service Provider Staffing

   1. NON-SOLICITATION.
   During the Service period and the Restricted Period, the Client shall not, directly or indirectly, whether individually or as an officer, director, employee, consultant, partner, stockholder, individual proprietor, joint venture, investor, lender, consultant or any other capacity whatsoever: (a) solicit, divert or take away, or attempt to solicit, divert or take away the Service Provider Staff or (b) hire, retain (including as a consultant) or encourage the Service Staff to leave the employment of the Service Provider, or hire or retain (including as a consultant) any former employee of the Service Provider who has left the employment of the Service Provider within one (1) year prior to such hiring or retention.

   2. NOT A LEASE/NOT A LICENCE.
   The Client agrees that the deployment of this software service does not transfer or confer any proprietary right or interest in the software beyond the customization and modifications that are peculiar to the Client for the purpose of reflecting the corporate character and identity of the Client.
   ‍
   3. ACKNOWLEDGEMENT.
   The Client agrees and acknowledges that their non-competition and non-solicitation obligations hereunder are essential to the protection of the Service Provider’s business.
   ‍
   4. EQUITABLE REMEDIES.
   The parties hereto hereby agree that breaches of covenants and obligations undertaken in this Agreement are likely to cause the Service Provider substantial and irrevocable damage, which would be difficult, if not impossible, to prove precisely; therefore, it is agreed that this Agreement shall be enforceable by specific performance. If breach is found on behalf of the Client, the Client agrees to pay one payment circle subscription rate of the subscription option subscribed to. Where the service provider is found in breach, the service provider will be required to remedy the breach by providing the service required.

   ‍
   5.
   Each party shall be responsible for the cost/ expenses or legal fees in  the event of any legal proceedings”

   10. INTELLECTUAL PROPERTY RIGHTS

   10.1
   ‍The Client acknowledges and agrees that the service provider is the sole owner throughout the world of any and all Intellectual Property Rights embodied in the System or Documentation and Services. It is expressly agreed between the Parties that no title or ownership with regard to Intellectual Property Rights embodied in the System or Documentation and Services shall be transferred to the Client as a result of this Agreement.
   ‍
   10.2
   ‍ The Client shall comply with the Service Provider’s intellectual property rights, and shall not:
   Modify any trademark owned by the service provider;
   Apply for registration of any trademark, trade name or domain name similar with any trademark owned by the service provider;
   ‍
   10.2.3
   Challenge or cause or facilitate others to challenge the validity of any trademark of the service provider.
   The Client shall immediately cease using any intellectual property upon the Service Provider notification that the use of such intellectual property likely infringes any right belonging to the service provider or another person.
   ‍
   10.4
   Nothing contained in this Contract shall be construed as conferring any right to use any name, trademark or other designation of either Party hereto, including any contraction, abbreviation, or simulation of any of the foregoing, in advertising, publicity or marketing activities. Neither Party will advertise or publish any information related to the Contract without the prior approval of the other Party.
   ‍
   11. INDEMNITY

   11.1
   The Client will, as applicable, defend, indemnify and hold harmless the Service Provider from and against the following, including all costs, losses, damage and expenses (including lawyer’s fees):
   ‍
   11.1.1
   any third-party claim in respect of or concerning any hardware, software or other systems of the Client that the Client has designed, installed and/or operates or claiming a breach of the third party’s intellectual property rights;
   ‍
   11.1.2
   any claim, demand, action, proceeding whatsoever by any user of any system in the Internet Applications Centre connected to the Client’s system;
   ‍
   11.1.3
   any loss or expense suffered by the Service Provider due to the misuse of the Service Provider system by, or any act or default of, the Client, its representative, employee, contractor, agent or Client; and
   ‍
   11.1.4
   all claims, actions, proceedings, loss, damage, costs, expenses and liabilities whatsoever arising from any improper use, or any use in violation of law or third-party rights, of the Services or the Equipment by the Client or any person authorized or permitted by the Client.
   ‍
   11.2
   ‍Notwithstanding any indemnities or other clauses in this Agreement, both Parties will use reasonable measures to mitigate any losses and damages that may occur.

   11.3
   In the event of a Party indemnifying the other Party against a claim, the Party providing the indemnity shall assume sole control of the defense or settlement of the claim.
   ‍
   12. FORCE MAJEURE
   ‍
   ‍Neither party will be responsible for any failure or delay in its performance due to causes beyond its reasonable control, including, but not limited to, acts of God, war, riot, terrorism, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that such party gives prompt written notice thereof to the other party and uses its diligent efforts to resume performance
   ‍
   12.1.
   Delay in or failure of performance by either Party under this Agreement shall not constitute a default or give rise to any claim for damages or penalties if and to the extent that such delay or failure is caused, wholly or in part, directly or indirectly, by Force Majeure Event.
   ‍
   12.2.
   A Party seeking relief from its obligations under this Agreement based on a Force Majeure Event (the “Affected Party”) shall, within fifteen (15) days after it becomes aware of such event, give written notice to the other Party (the “Unaffected Party”) of the circumstances constituting the Force Majeure Event and shall keep the Unaffected Party informed of the progress in resolving the Force Majeure Event. The Affected Party shall be liable for losses resulting from its failure to give notice which could have otherwise been avoided.
   ‍
   12.3.
   ‍Both Parties shall take all reasonable efforts to minimize the adverse effects of the Force Majeure Event on the performance of its obligations under this Agreement and to resume the performance of such obligations as soon as the Force Majeure Event ceases.
   ‍
   12.4.
   The Affected Party shall be entitled to an extension of time equal to the duration of Force Majeure Event for the performance of the affected obligations.
   ‍
   12.5.
   If the Force Majeure Event continues for more than ninety (90) days, a discussion shall be held between the Parties in order for the obligations of the Parties to be otherwise performed. If the Force Majeure Event continues for more than one hundred and eighty (180) days and/or the Parties have not agreed upon a substitute schedule for performing the obligations, either Party may, upon thirty (30) days’ prior written notice, terminate this Agreement.
   ‍
   13. SEVERABILITY

   ‍If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable to the greatest possible extent. If the impacted provision cannot be so modified, the parties agree that the invalid provision will not affect the validity of the remaining portions of the Agreement

   14. GOVERNING LAW

   ‍This Agreement shall be interpreted in accordance with and governed by the Substantive Laws of the Federation of Nigeria.
   15. SIGNATURE
   The Client acknowledges that they have read this agreement, understand and agrees to be bound by the terms of the service level outlined in this agreement. In the event that the Client is unable to sign this Agreement before commencement of the Service and the Client proceeds to make payment, payment for the service will be a presumption that the Client intends to be bound by the terms of this Agreement and the Client shall be bound by this Agreement.