EXHIBIT 10.1
FEC LIMITED
Service Level Agreement
THIS AGREEMENT is made on the o day of November 1999.
BETWEEN:
FEC Limited, a company incorporated under the laws of Bermuda
whose registered office is at Xxxxxx Xxxxx, 00 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx XX00, Xxxxxxx ("XXX") and The Peoples Telephone Company
Limited, a company incorporated under the laws of Hong Kong SAR
whose registered office is at 8/F Manhattan Centre, 8 Xxxx Xxxxxx
Road, Xxxx Xxxxx, Kowloon, Hong Kong. ("Merchant")
RECITALS:
A. This Agreement supplements and shall be construed in conjunction with the
Ecommerce Merchant Agreement signed between FEC and the Merchant. This
Agreement becomes void if either party terminates the Ecommerce Merchant
Agreement.
B. FEC will, from time to time, provide professional services to the
Merchant that enables proper connection to the FEC payment gateway and
the use of FEC Services. This Agreement defines the services, support and
service levels that FEC is committed to the Merchant.
1. DEFINITIONS
1.1 Acceptance Date - for an item of Software, the first business day
following the date on which Merchant advises FEC in writing that
"User Acceptance Test" for that item has been completed
successfully.
1.2 Delivery Date - the business day on which FEC makes all of the
Software available for installation at the Installation Site.
1.3 Delivery Target Date - the business day specified in a Project
Plan on which FEC agrees to make available Software for
installation at the Installation Site.
1.4 Ecommerce Merchant Agreement - the Ecommerce Merchant Agreement
entered into between FEC and the Merchant dated November o, 1999.
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1.5 Error - an instance of failure of Software to be Operative. An
Error is a Class 1 Error if it renders continued use of Software
Commercially infeasible in Merchant's reasonable judgment in
consultation with FEC. An Error is a Class 2 Error if it makes
continued use of Software inconvenient and substantially reduces
its value to the Merchant, in the Merchant's reasonable judgment
in consultation with FEC. All other Errors are Class 3 Errors, in
particular, all documentation shortcomings and deviations that do
not have the economic consequences defined for Class 1 and Class 2
Errors shall be deemed Class 3 Errors.
1.6 Implementation Date - the business day specified in the Project
Plan when the Merchant first uses a System commercially in
production in the ordinary course of the Merchant's business.
1.7 Project Plan - as defined in clause 2.1.1.
1.8 Software - object code and source code of a System, together with
associated user and operation manuals and other documentation,
supplies, trademarks and forms supplied to Merchant under a
Development Agreement.
1.9 System - the system to be designed, developed and installed by FEC
pursuant to clause 2.2.1.
1.10 Update - a set of procedures or new program code that FEC will
implement to correct all errors in the Software to the extent
reasonably practicable, and which may include modifications and
enhancement to improve performance of the Software.
1.11 Upgrade - a new version of Software which improves the
functionality of the system or which adds functional capabilities
to such Software.
1.12 User Acceptance Test - a set of procedures to formally test the
system with known input data and expected results.
1.13 Warranty Period - for a System the one hundred and twenty (120)
days period commencing on the Implementation Date specified in the
Project Plan.
2. SOFTWARE DEVELOPMENT
2.1 Requirement Phase
2.1.1 Merchant shall prepare, according to the schedule in the
Project Plan, a User Requirements Specification for a
project and related documentation
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called for by a development agreement or another
comparable, disciplined project life cycle system
acceptable to FEC, in its sole discretion.
2.1.2 Merchant shall provide FEC access to Merchant's existing
software and documents which will be a source of
information for the projects and allow, when necessary, FEC
to work on Merchant's premises and to use a printer,
telephone, fax machine, photocopy machine, support supplies
and materials.
2.2 Design, Development And Installation
2.2.1 Upon written notice from Merchant accepting a Functional
Requirements Specification, FEC shall commence development
of a system. Until the Acceptance Date, FEC shall inform
the Merchant at periodic intervals of the status of the
project, progress against milestones and problems
encountered and resolved.
2.2.2 FEC shall install Software at the Installation Site, with
the assistance and under the supervision of Merchant
representative, according to the schedule set forth in the
Project Plan. Merchant shall notify FEC in writing,
determines that a System fulfills the Installation
Condition.
2.3 Acceptance
2.3.1 Merchant shall deliver, with the assistance from FEC, a
"User Acceptance Test Script" (UAT Script) for a System,
which will describe in detail how the UAT will demonstrate
that a System has the functions and operations specified in
the Functional Requirements Specification and will further
describe the objective, input, e.g., data values,
transaction types, data volumes, etc., and expected
results. The UAT Script shall also specify entry criteria,
e.g., screen results, reports, expected control totals, and
data values, etc., together with all operational
instructions required to carry out the tests. In return,
FEC will provide the Merchant with a UAT Plan.
2.3.2 Merchant shall conduct the User Acceptance Test, using the
UAT Plan provided by FEC. Merchant shall notify FEC in
writing of its acceptance or rejection of the Software. If
Merchant discovers during the UAT that any System does not
execute the UAT accurately, or Class 1 Errors or Class 2
Errors occur, Merchant shall notify FEC in writing of the
deficiencies. FEC, at its own expense, shall modify,
repair, adjust or replace the System to make it operative
within five (5) days from the date of Merchant's deficiency
notice. After any modification, repair, adjustment or
placement, Merchant may perform additional UAT until
fully-satisfied with the Software.
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2.4 Documentation And Training
2.4.1 FEC shall have full responsibility for preparing any
documentation which the Development Agreement requires FEC
to deliver and for development and testing of the software.
2.4.2 FEC shall provide a "train the trainer" training course in
use of the System on Merchant's premises at the
Installation Site on date to be specified by Merchant. The
number of training days will depend on the training
material and complexity. The Merchant can send certain
number of technical people to attend this training course.
FEC shall provide Merchant at no charge with all trainer
leadership materials FEC has available or used in
connection with the classes conducted for the Merchant.
Merchant may duplicate these materials for Merchant's use
exclusively and use them to conduct other classes at
Merchant's convenience.
2.5 Changes To Project Plan
If FEC notifies Merchant that all or any part of a System will not
be delivered on the schedule set forth in the Project Plan,
Merchant may terminate or revise or limit the Project to avoid
delay. Merchant shall specify such revisions or limitations to the
Project Plan in a Software Development Project Plan Revision. If
Merchant determines to continue the Project pertaining to such
System, FEC shall prepare to Merchant a revised Project Plan
encompassing the revisions or limitations selected by Merchant to
avoid or mitigate the delay.
2.6 Additional Work
No additional work will be performed by FEC, except for those
already specified in the Functional Requirements Specification of
Phase 1 or as mutually agreed before successful completion of the
UAT.
2.7 Warranty
2.7.1 For a period of one hundred and twenty (120) days following
the Acceptance by Merchant (the "Warranty Period"), FEC
warrants to Merchant that the System when properly
installed, properly used and unmodified by Merchant, will
conform to the relevant Specifications and remain
substantially operative. FEC's sole responsibility shall be
to use reasonable commercial efforts to promptly correct
errors or defects. All Warranty claims not made in writing
or not received by FEC within the Warranty Period shall be
deemed waived. FEC's warranty obligations are solely for
the benefit of Merchant, who has no authority to extend or
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transfer this warrant to any other person or entity. In the
case of a hardware, warranty will be provided by the
hardware manufacturer.
2.7.2 Subsequent to the Warranty Period, FEC shall continue to
provide the warranty services described in Clause 2.7.1 on
the basis set out therein provided that FEC shall be
entitled to invoice the Merchant for charges incurred in
connection with such services in an amount equal to cost
incurred by it together with such hourly other fees as are
normally charged by FEC, from time to time, in connection
with providing such services. Notwithstanding the
foregoing, FEC shall provide such further services without
charge to the Merchant in the event that any such
additional warranty claims by the Merchant arise as a
result of any fault on the part of FEC.
2.8 Intellectual Property Right (IPR)
2.8.1 Except for Third Party Materials and any Merchant Content,
the System developed for Merchant will be the sole property
of FEC, hence, FEC holds the IPR of the System delivered to
the Merchant. Onward selling or using of the System by any
unauthorized third party is prohibited.
2.8.2 With written approval from FEC, the Merchant may modify the
Software after the expiration of the Warranty Period.
3. PROFESSIONAL SUPPORT
3.1 FEC's Service Responsibilities
3.1.1 During the term of a development agreement, upon Merchant's
request, FEC shall provide Merchant the support services
(the "Services") described in this section with respect to
the Software supplied pursuant to such agreement, including
providing Updates and Corrections at no charge until the
expiration of the Warranty Period thereof and, thereafter,
at a rate of HK$700 per hour. (The list price is HK$1,000
per hour).
3.1.2 If reasonably practicable, FEC shall correct all Errors
reported by Merchant by means of the procedures established
by this section.
3.1.3 FEC's support services shall be performed in a timely and
professional manner by qualified maintenance professionals
familiar with the Software and its operation, and the
Services shall conform to the standards generally observed
in the industry for similar services.
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3.1.4 Unless otherwise agreed by Merchant prior to a service
being rendered, FEC shall charge Merchant at a rate of
HK$700 per hour.
3.2 Support And Service Level
3.2.1 FEC shall provide support services during office hours (9am
to 6pm) from Monday to Friday except Public Holidays, at no
cost to Merchant, during Warranty Period. Merchant will be
charged for services after the Warranty Period.
3.2.2 FEC shall provide to Merchant, and keep current, a list of
persons and telephone numbers ("Calling List") for Merchant
to contact in order to obtain answers to questions
concerning Merchant's use of the System or assistance in
solving problems encountered in Merchant's use of the
System. Such Calling List shall include: (1) the first
person to contact in the event of such question or problem,
and (2) the persons in successively more responsible or
qualified positions to provide the answer or assistance
desired.
3.2.3 If Merchant detects any Error in Software during the
Warranty Period, Merchant shall contact FEC's telephone
consultative service. FEC shall respond, in any event,
within eight (8) working hours. If FEC fails to respond; or
if Merchant is unable, after three or more calls within a
fifteen (15) minute period, to reach FEC's telephone
consultative service; or if the designated person from the
Calling List is not available when Merchant makes contact
with FEC to obtain additional consultation and assistance,
then Merchant shall attempt to contact the next more
responsible or qualified person on the Calling List until
contact is made and a designated person responds to the
call.
3.2.4 After Merchant reports a suspected Error, FEC shall provide
a Correction or workaround as soon as possible. Merchant
shall consult with FEC to determine the severity of the
Error. If FEC has not diagnosed and corrected a Class 1
Error or Class 2 Error on the same day as Merchant's
initial telephone call, and Merchant wishes to obtain a
Correction, Merchant shall submit to FEC a listing of
output and such other data as FEC reasonably may request in
order to reproduce operating conditions similar to those
present when Merchant detected the Error. Merchant also
shall notify FEC in writing whether the Error is Class 1
Error or a Class 2 Error.
3.2.5 For Class 1 Errors, FEC shall take all necessary and
desirable steps, without regards to cost, to supply a
workaround reasonable in Merchant's judgment after receipt
of output or other documentation of the Error.
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3.2.6 For Class 2 Errors, FEC shall take reasonable steps to
provide a workaround reasonable in Merchant's judgment or a
correction within five (5) days after receipt of output or
other documentation of the Error. These steps shall include
assigning fully-qualified professionals to work with
Merchant at Merchant's site during Merchant's regular
business hours until FEC provides a reasonable workaround
or Merchant determines after consultation with FEC that
such a workaround or Correction cannot be produced by FEC's
on-site technicians.
3.2.7 For Class 3 Errors, FEC shall correct the Error by
modifying System or documentation or issuing an Update.
3.3 System Enhancements
3.3.1 At Merchant's request, FEC shall provide system
enhancements at Merchant's cost.
3.3.2 If initiated by FEC, system enhancements shall be provided
at no cost.
3.4 Termination of Services
Termination of services will be determined by the section
"Termination - Term of Agreement" as stated in the Ecommerce
Merchant Agreement between FEC and The Peoples Phone Company Ltd.
3.5 Merchant Responsibilities
3.5.1 If Merchant discovers any suspected Error in Software,
Merchant shall analyze the suspected Error to determine if
it is the result of Merchant's misuse or misunderstanding
of the Software before seeking FEC's assistance. Merchant
may contact persons on the Calling List to make the first
report of a suspected Error.
3.5.2 If Merchant alters or modifies the Software without FEC's
written approval:
3.5.2.1 Any additional Services costs or expenses
occasioned to FEC by such alteration shall be
reimbursed by Merchant; or, at Merchant's option,
3.5.2.2 FEC shall be released from Services obligations
for the modified portion of the Software.
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4. HARDWARE
4.1 The hardware is maintained by FEC in secure premises in Bermuda
and such hardware shall at all times be maintained in sufficient
condition and capacity for FEC to provide its services at all
times under this Agreement.
5. FORCE MAJEURE
5.1 Notwithstanding anything else contained in this Agreement, neither
party shall be in breach of this Agreement or liable to the other
with respect to any complete or partial failure performance by its
duties or obligations under this Agreement occasion by any act of
God, fire, active government or state, war, civil commotion,
insurrection, embargo, or other cause beyond the control of either
party. For greater certainty, the provisions of this clause shall
apply to FEC and FEC shall have no responsibility with respect to
or arising out of any disruption of its processing services (save
where such disruption arises solely as a result of the gross
negligence or wilful misconduct of FEC). If either party is unable
to perform its duties and obligations under this Agreement as a
direct result of the effect of one or more of any such causes the
operation of this Agreement shall be suspended during the period
(and only during the period) during which such cause continues to
have effect.
6. TERMS RELATING TO INTELLECTUAL PROPERTY
6.1 Nothing in this Agreement grants either party any rights in or
under the intellectual property (whether trademarks, copyrights,
patterns, know-how or otherwise) of the other party and neither
party shall use the intellectual property of the other party
without prior written consent, such consent to be subject to such
terms and conditions as the party granting such consent may
require. No use by one party under this Agreement of the other's
intellectual property shall confer upon the first party any rights
in or under such intellectual property. All rights connected with
or rising out of such use accrue to the owner of the intellectual
property in question.
6.2 Each party agrees that it shall fully indemnify the other party
against all liabilities, costs, charges and expenses (including
legal expenses) arising out of all actions, claims, demands and
proceedings brought against that party (including without
limitation claims of infringement brought by third parties)
arising out of or connected its use of the first party's
intellectual property if such use was approved according to Clause
6.1.
7. GENERAL CONTRACT PROVISIONS
7.1 All notices, requests, demands or other communications required or
permitted to be given by one party to another under this Agreement
must be given in writing by personal delivery, or by registered
mail, postage prepaid, addressed to the other party or parties at
the address set out on the first page (and, in the case of
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FEC, with a copy to be provided to First Ecommerce Asia Limited,
000, Xxxxxx Xxxxxxxx, 0 Xxxxx'x Xxxx, Xxxxxxx Xxxx Xxxx) or at
such party or parties' other address if changed by notice given in
accordance with this Clause or Clause 7.2. Such notices, requests,
demands or other communications will be deemed to have been
received when delivered if delivered personally (unless the date
of delivery is not a Business Day or is delivered or sent after
5:00 p.m., (Bermuda Time) in which case the notice, request,
demand or other communication shall be deemed to have been
received on the next following Business Day) and, if mailed, will
be deemed to have received on the seventh (7th) Business Day after
the mailing thereof. During any interruption in regular postal
service, all notices, requests, demands or other communications
must be delivered personally or sent by facsimile transmission.
7.2 Notwithstanding Clause 7.1, all notices, requests, demands or
other communications required or permitted to be given by one
party to another party under this Agreement may be sent to the
receiving party's facsimile number as notified by such party to
the other in accordance with either clause 7.1 or this clause.
Notices, requests, demands or other communications sent by
facsimile transmission will be deemed to have been received when
transmitted (provided that the transmission is confirmed by the
transmission report) unless the date of delivery is not a Business
Day or the transmission is sent after 5:00 p.m. (Bermuda Time), in
which case the notice, request, demand or other communication
shall be deemed to have been received on the next Business Day.
7.3 Time is of the essence of this Agreement and of every part hereof.
7.4 This Agreement is governed by and shall be construed in accordance
with the laws of Bermuda.
7.5 This Agreement constitutes the entire Agreement between the
parties with respect to the matters herein and its execution has
not been induced by, nor do any of the parties rely upon or regard
as material, any representations, warranties, conditions,
promises, Agreements or statements whatsoever not incorporated
herein and made a part hereof.
7.6 Other than as specifically provided for herein, this Agreement may
not be amended, altered or qualified except by a memorandum in
writing signed by all of the parties.
7.7 If any article, clause or any portion of any section of this
Agreement is determined to be unenforceable or invalid by order,
decree or judgement of any court having jurisdiction, or is or
becomes unenforceable or invalid by virtue of any duly promulgated
law, rule or regulation, the remainder of this Agreement will be
construed as if the article, clause or portion of a section had
not been inserted.
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7.8 FEC shall have the right, on written notice to the Merchant, to
assign this Agreement or all or any portion of its rights
hereunder to a wholly owned subsidiary of First Xxxx.xxx, Inc.
Subject to the foregoing, neither FEC nor the Merchant shall have
the right to assign this Agreement or its rights hereunder without
the prior written consent of the other party.
7.9 This Agreement is binding upon and shall enure to the benefit of
the parties and their respective successors and permitted assigns.
ACCEPTED AND AGREED TO BY: ACCEPTED AND AGREED TO BY:
FEC LIMITED THE PEOPLES TELEPHONE
COMPANY LIMITED
---------------------------------- ----------------------------------
Authorised Signature Authorised Signature
Name: ____________________________ Name: ____________________________
Title: ___________________________ Title: ___________________________
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