Work Provider Agreement
Dated this day of 2019
SERVICE LEVEL AGREEMENT between G-AJIRI FIELDTECHS LIMITED
(Service Provider) and ………………………………..
(CLIENT)
This SERVICE LEVEL AGREEMENT (this “Agreement”) is made this……………day of……………2019 BETWEEN:-
G- AJIRI FIELDTECHS LIMITED a private limited liability company registered under the laws of Kenya under Certificate of Incorporation No. PVT-RXULZ56 and of P.O Box 60548-00200, Nairobi, Kenya (hereinafter called the ‘Service Provider’ and where the context so admits, shall include its successors in title and permitted assigns) on first part; and.
……………………………………, a private limited liability company registered under the laws of Kenya under Certificate of Incorporation No. ……………. and of P.O Box ……………., Kenya (hereinafter called the ‘Client’ and where the context so admits, shall include its successors in title and permitted assigns) on the second and last part.
PARTIES, both the first and second part will hereinafter be collectively referred to as ‘PARTIES’
WHEREAS:
The Service Provider has a vast knowledge and expertise in the business of, among others, provision of networking services
The Client is in need of Services that are more particularly specified under the First Schedule to this Agreement the “Deliverables” Hereinafter referred to as ‘Services ‘and wishes to appoint the Service Provider to provide these Services through the service provider’s independent contractors
The Service Provider is desirous and willing to provide these Services to the Client
The Parties wish to enter into this Agreement for the purposes of recording, managing and regulating their relationship
NOW THEREFORE, in consideration of the fact that the Parties will in the course of provision of the Services need to manage and regulate the provision of their Services, the Parties have agreed as follows:
NOW IT IS HEREBY AGREED as follows:
Definitions and Interpretation
In this Agreement (including the recitals and Schedules) unless the context otherwise requires:
“Business Day” means a day which is not a Saturday, Sunday or a gazetted public holiday in Kenya;
“Commencement Date” means the date of this Agreement as indicated above;
“Effective Date” means go live date after set up
"Services” means the Services offered by the Service Provider and referred to under the First Schedule in this Agreement as may be amended in writing from time to time by mutual agreement between the Parties;
“System” the technology used to deliver the Services to the Client
“WEB” The Service Provider’s online portal that will be used by the client
“PRSP” Premium Rate Service Provider
Unless the context otherwise requires, in this Agreement (including recitals and the Schedules);
Words and expressions defined in a statute shall bear the same meaning ascribed to them in the Act whenever used herein;
the headings and any descriptive notes shall be for convenience only and shall not affect its interpretation;
singular shall include the plural and vice-versa;
the masculine shall include the feminine;
"days" shall be construed as calendar days unless qualified by the word" Business";
any statute or statutory provision or to any other rules or regulations of any competent authority shall be construed as references to such statute or statutory provision or rules or regulations as respectively amended or re-enacted or as their operation is modified by any other statute or statutory provision rules or regulations (whether before or after the date of this Contract) and shall include any provisions of which they are re-enactments (whether with or without modification) and shall include subordinate legislation, made under the relevant statute;
person shall include any firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing and any other legal entity;
the expression “hereof”, “herein” and similar expressions shall be construed as references to this Contract as a whole and not be limited to the particular clause or provisions in which the relevant expression appears;
the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement;
1.2.11. unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or where the last day does not fall on a Business Day, the next succeeding Business Day;
Where figures are referred to in numeral and in words, and there is any conflict between the two, the words shall prevail unless the context indicates a contrary intention.
Except as expressly set out in this Agreement, any lists contained in any schedule or annexure are for guidance only and are not exhaustive or complete.
Any covenant by a Shareholder not to do an act or thing shall be deemed to include an obligation not to permit or suffer such act or thing to be done by another person so far as this is within the power or control of such a Shareholder.
Appointment and Commencement Date
The Client appoints the Service Provider to implement the Services thorough an independent sub-contractor and the Service Provider agrees to the appointment to implement the Services pursuant to this Agreement.
Notwithstanding the Commencement Date, this Agreement shall be deemed to have taken effect on the Effective Date.
Commencement of Provision of the Services
Notwithstanding the date of this Agreement, the Service Provider shall be deemed to have commenced providing or implementing the Services on the Effective Date and shall, unless terminated pursuant to clause 15. Below, continue for an indefinite period of time.
Provision of the Services
The Service Provider shall provide the Services through an independent sub-contractor of the clients’ choice as listed under the First Schedule to this Agreement (as may be amended by the parties in writing from time to time).
The Client acknowledges that for the successful provision of the Services, it will have to integrate with the company’s independent contractors;
The Service Provider may not be in control of these services as it shall be rendered by the company’s independent contractors and in this regard, the Client irrevocably acknowledges that it shall not penalize the Service Provider for related non-performance.
Clause 4.3 above notwithstanding, the Service Provider undertakes to provide the Services through the sub-contractor in the best way possible and in a manner that adds value to the Client. In the event of unsatisfactory performance of the Services by the sub-contractor, the Client will engage the signatories to this Agreement in good faith and with a view to finding an immediate solution.
Target Response Times:
The following chart sets out the target service response times, and target service provision time which
Varies based on the requested service
CLASSIFICATION
Target First Response
Target Restoration
Time
Time
Priority 1
Priority 2
5.1 Where the Service provider is or becomes aware of any occurrence that may likely result in a delay, they shall notify the Client.
5.2 In no event shall the service provider be responsible for any delay which may be occasioned by the following issues:
Contact Persons
The Service Provider and the Client will each:
Appoint a person or persons as nominated contacts who will be the central point of liaison between the Service Provider and the Client for all routine issues regarding the provision of the Services. All communication between the Parties herein shall be done exclusively between the persons appointed under this clause but each Party, may by a written notice to the other appoint additional or replacement contact persons.
For purposes of clause 6.1.1 above, the Client appoints the following persons:
6.1.1.1. ................................................................
6.1.1.2. .................................................................
For purposes of clause 6.1.1 above, the Service Provider appoints the following persons:-
………………………………..
………………………………
Notify each other of the contact details of the nominated persons and with the contact details of any other person or persons to act as the nominated contacts should the primary nominated contacts are unavailable. The Service Provider and the Client will notify each other of any changes to these details; and
The Persons appointed under this clause may propose amendments to this Agreement and present them to the signatories to this Agreement for endorsement.
Obligations and Responsibilities of the Service Provider
Identifications of services. Subject to the terms and conditions of this Agreement and the attached Schedules, from and after the Effective Date, the service provider hereby agrees to provide to client the Services defined herein and the client agrees to pay to the service provider the fees and other amounts required to be paid by client pursuant to this Agreement.
Service Standards. Subject to the terms hereof, each Service provided hereunder shall be performed in a manner substantially similar to the manner in which, and at a level of proficiency, skill, priority and care no less than that which, such Service is provided to the service provider businesses. In addition, the service provider shall ensure that the sub-contractor provides services in compliance with the law and in a professional and competent manner.
Changes in the manner of providing services. The service provider shall have the right to change the manner in which it provides Services (including upgrading or changing technology, software, information systems or other property used by it in connection with this Agreement). The service provider shall give client prior notice of any material change as soon as practical under the circumstances. If the client determines the changes to be unacceptable or causes material additional costs, the client can terminate this Agreement immediately.
No Representations or Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES AND HEREBY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS, OR FITNESS FOR A PARTICULAR PURPOSE.
Obligations and Responsibilities of the Client
Payment of Fees
In consideration of provision of the Services, the Client shall pay the Service Provider the Fees as follows: -
The Client shall pay fees to the service provider as indicated on the Work Schedule, without reduction for income tax withholdings or other employee deductions. The amount will be charged exclusive of any taxes.The Service provider and Personnel shall receive no other compensation or benefits for services provided hereunder.
The Fees shall be paid via Mpesa OR directly to an account nominated by the Service Provider and communicated in writing
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Subscription Fee
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The Client shall pay a subscription fee of ………... This fee shall remain in effect for the duration of such individual's contract at G-ajiri.
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Taxes
Consequent to the provisions of clause 10 below (Independent Contractor), the contractor shall be responsible for its own taxes and all statutory payments including, without limitation, Income Tax and any other tax as may be due or payable in respect of its income under this Agreement.
Independent Contractor
The Service Provider shall act and perform the Services through an independent contractor and nothing contained in this Agreement shall be deemed or construed to create an employment relationship between the Client and the Service Provider.
Restrictions on Disclosure, Circumvention and Use of Confidential Information
The Parties acknowledge that in the course of engaging each other they will become privy to large extents Each Party’s Confidential information
The Parties acknowledge that such Confidential Information is valuable, special, unique and proprietary to Each Party and/or their subsidiaries or associated companies and agree that they shall not disclose, copy, exploit or use or divulge in any manner whatsoever any Confidential Information and in this regard, the Parties covenant that they shall use the Confidential Information:-
11.2.1. in the strictest confidence and in this regard not to, without the prior written consent of the disclosing Party disclose any Confidential Information to any other Party outside this Agreement;
only for the purpose for which it is intended in the context of this Agreement;
In a manner so as to prevent any violation of this Agreement and/or communication of Confidential Information to any unauthorized third parties and that the disclosing Party shall be liable as primary obligor for any breaches of this Agreement.
Non Solicitation
Parties agree that during the existence of this Agreement and for a period of One (1) year following the termination of this Agreement for any reason whatsoever, they shall not:
Solicit or attempt to solicit or directly or indirectly (whether individually or as a director, employer, partner, shareholder, proprietor, joint venture, investor or lender of Either Party) do business relating to the Services with any employee or co director of Either Party.
Encourage, entice, incite, persuade, induce or attempt to encourage, entice, incite or persuade an employee or co director of the Either Party to leave or otherwise terminate its relationship with the Either Party or any of their affiliates or associates;
Solicit or attempt to solicit away business relating to the business of Either Party in competition with the any of the Parties.
The Parties further agrees that the covenants in this clause are reasonable and necessary to protect Each Party’s legitimate business interests and that each of the restrictions set out in this clause shall be considered separate from one another and it is acknowledged that each sub-clause may contain more than one restriction.
Intellectual property
Confidential Information shall remain the property of the Respective Party and its disclosure shall not confer on Either Party any rights, including intellectual property rights, over the Confidential Information whatsoever.
All drawings, documentations, specifications, data, source codes and other materials created by Either Party as a result of this Agreement shall vest in the Respective Party and may not be used by the Other Party or their appointed representatives at any time and in any way for their benefit without written consent from the Other Party except as provided by this agreement
Non Circumvention
Each Party agrees not to directly or indirectly contact, deal with transact, or otherwise be involved with any corporation, partnership, proprietorships, trust, individuals, or other entities introduced by either Party without the specific written permission of the introducing Party.
Each Party agrees not to directly or indirectly circumvent, avoid or bypass each other regarding any renewals, corporation, partnerships, proprietorships, trusts, or other entities introduced by either Part
Termination
This Agreement shall come into force on the Commencement Date and shall continue in force from that date until the Parties have discharged all of their obligations hereunder, subject to the provisions of this Clause 11.
Without affecting any other right or remedy available to it, either party may terminate this agreement by giving one days’ (1) notice in writing to the other party if:
the other party commits a material breach of any term of this agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 1 days after being notified in writing to do so;
For the purposes of clause 11.1.1 above ‘material breach’ means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
the other party ceases to pay its debts in the normal course of business, enters into or proposes to enter into a voluntary arrangement or composition with its creditors, becomes insolvent, bankrupt or goes into liquidation (other than for the purpose of solvent reconstruction or amalgamation) or has a receiver, administrator, trustee or similar officer appointed in respect of all a substantial part of its business and assets or otherwise ceases to be a validly existing corporation; or
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
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Termination of this agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other and all provisions which are expressed to survive this agreement shall remain in force and effect.
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Governing Law and Jurisdiction
This Agreement shall be governed by and construed in all respects in accordance with Kenyan law and subject to the Arbitration clause below, both Parties submit to the jurisdiction of the Kenyan courts in respect of any dispute, arbitration or proceedings which may arise out of or in connection with this Agreement.
Dispute resolution
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Any dispute arising out of or in connection with this agreement on their respective rights and liabilities with respect hereto or otherwise arising in respect of matters the subject of this agreement shall first be referred to the Parties’ appointed and authorised representatives to use their best efforts in good faith to negotiate between them an amicable settlement to the dispute. If the dispute cannot be resolved by the Parties within seven (7) days on which such negotiations commenced then the Parties shall refer it to mediation by a sole mediator to be agreed upon by the Parties. If mediation similarly fails to resolve the dispute within a further seven (7) days from the date on which such mediation commenced then the Parties shall refer it to arbitration by a single neutral arbitrator to be appointed by agreement between the Parties or in default of such agreement within seven (7) days after the end of the mediation the arbitrator shall be appointed by the chairperson for the time being of the Kenya Branch of Chartered Institute of Arbitrators. To the extent permissible by law, the determination of the Arbitrator shall be final and conclusive and binding upon the Parties. Pending final determination or settlement of a dispute, the Parties shall continue to perform their subsisting obligations hereunder.
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Notwithstanding the above provisions of this clause, a party is entitled to seek preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction.
Notices
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Any and all notices, payment instructions or other instruments or papers to be sent to any Party hereto pursuant to this agreement shall be sent by hand delivery, registered post, airmail or a reputable international courier (if the notice is to be served outside the country from which it is sent) and or email to the addresses provided in clause 17.2 below or such other address as may be notified by any Party to the other Parties by prior notice of not less than five (5) Business Days.
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For purposes of delivery of notices by email, the notice must be sent to:
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[INSERT EMAIL ADDRESS];
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[INSERT EMAIL ADDRESS];
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Delivery of a notice is deemed to have taken effect:
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if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the address; or
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if sent by email, at the time of transmission; or
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if sent by pre-paid airmail to an address outside the country from which it is sent, at 8.00 am on the fifth Business Day after posting; or
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if sent by reputable international overnight courier to an address outside the country from which it is sent, on signature of a delivery receipt or at the time the notice is left at the address; or
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if deemed receipt under the previous paragraphs of this clause 17.3 would occur outside business hours (meaning 8.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), at 8.00 am on the day when business next starts in the place of deemed receipt. For the purposes of this clause, all references to time are to local time in the place of deemed receipt.
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Intention to Be Bound and Applicability of Specific Statutes
Each of the Parties hereby agrees and confirms for the purposes of the Law of Contract Act (Chapter 23, Laws of Kenya) that it has executed this Agreement with the intention of binding itself fully to the contents hereof.
Authority to Execute
The Parties warrant that the individuals executing this Agreement on their behalf have the authority to do so it being agreed that it shall not be necessary for any Party to enquire or verify whether such action has in fact been taken.
General
Each Party shall pay its own costs in relation to the negotiation and execution of this Agreement.
No single or partial exercise or failure or delay in exercising, on the part of either Party, any right, power or remedy under this Agreement or the granting of time by either Party shall prejudice, affect or restrict the rights, powers and remedies of that Party under this Agreement, nor shall any waiver by any Party of any breach of this Agreement operate as a waiver of or in relation to any subsequent or any continuing breach of this Agreement
This Agreement supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing between the Parties in relation to the matters dealt with in this Agreement and represents the entire understanding between the Parties in relation to them.
Any date or period mentioned in any clause of this Agreement may be extended by mutual agreement of the Parties but as regards any date or period (whether or not extended as aforesaid) time shall be of the essence in this Agreement.
Any remedy conferred on the Parties for breach of this Agreement shall be in addition and without prejudice to all other rights and remedies available to the Parties.
No variation or amendment to this Agreement shall be effective unless in writing and signed on behalf of each Party in the same manner as this Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.
Nothing in this Agreement shall create or be deemed to constitute or give rise to a partnership, joint venture, agency, or any employment relationships between the Parties, or any employment relationship between any Worker and [either] the Service Provider [or the Sub-Contractor], or any other fiduciary relationship, other than the contractual relationship expressly provided for in this Agreement.
The validity, enforcement, construction and performance of this Agreement shall be governed by the laws of Kenya and subject to Clause 16, the Parties submit to the exclusive jurisdiction of Kenyan courts.
If any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the other provisions of this Agreement shall not be affected and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected.
The Services
Payment
Client will make payment to the Service Provider as follows: