MAINTENANCE & SUPPORT AGREEMENT
This Maintenance & Support Agreement (the ”MSA”) by and between Del-Pak Systems Ltd., of 31 Lechi St., POB 1461 Bnei Brak 5111401 Israel, an Israeli company ("Orpak"), on behalf of itself and its Affiliates, and to the customer detailed under the applicable Order Acknowledgment (the “Customer”). Each of Del Pak and the Customer may be referred to as a “Party” or collectively as “Parties”.
For the purpose of this Agreement an “Affiliate” of a Party means a company that is a controller of either Party or controlled by such Party, is being agreed that control, in this context, exists where on entity owns directly or indirectly more than forty-eight percent (48%) of the voting stock in another entity, or regardless of stock or equity ownership, is otherwise able to direct it affairs or to appoint a majority of the members of the board of directors or an equivalent body able to determine the course of action of the entity by virtue of its voting or other rights;
1. SCOPE. This Maintenance & Support Agreement (MSA) sets out the terms and conditions under which Orpak will provide support services subject to the list detailed in Service Level Agreement (“SLA”) attached as Annex B (the “Services”) as may be updated by Orpak from time to time, for Orpak’s products listed under Annex A (the “Equipment”) and includes Orpak’s software embedder in the Equipment (the “Software”) provided to the Customer. The Services shall only be applicable to latest version of the Software. Customer shall be entitled to one annual service upgrade of the Software version purchased.
2. TERM. This Agreement shall commence on the date of Equipment’s shipment to the Customer, subject to provisions for earlier termination, shall continue for the for a period of twelve (12) months (“Initial Term”) and shall automatically renew for an additional 12 months periods (“Renewal Period(s)”). Either party may give written notice to the other Party, not later than 90 days before the end of the Initial Term to terminate this Agreement at the end of the Initial Term.
The Customer may terminate this Agreement within any Renewal Period provided that it gives Orpak at least 90 days written notice; The Customer shall not be entitled to terminate this Agreement during the Initial Period unless the provisions of clause 9 apply.
3. ERROR RECOVERY AND PROBLEM SOLVING. Orpak will respond to a reported error and resolve the error within the response and resolution times, differentiated according to the SLA attached as Annex B. Customer will report errors (in English) to Orpak’s Customers Support Center (“CSC”), as further detailed under the SLA. Response time shall be subject to the SLA package chosen by the Customer. If the response to or resolution of a reported error falls outside Orpak’s Regular Office Hours the errors will be resolved as soon as possible within the next Regular Office Hours.
4. MAINTENANCE & SUPPORT FEE
4.1 Customer will pay maintenance & support fee to Orpak in the amount set out in Annex C, subject to the SLA Package chosen by the Customer (“Maintenance & Support Fee”).
4.2 The Maintenance & Support Fee shall be paid in advance for one (1) calendar year (pro-rated until the end the first year, and from then on an annual basis) of at a time and shall be paid by the Customer within thirty (30) days from date of valid invoice. Provision of the Services is subject to full and timely payment of the Maintenance & Support Fee. The balance of additional charges and adjustments shall be due no later than fifteen (15) day from the date of Customer’s order. Orpak reserves the right to withhold Services if the Customer has not made all payments when due. Orpak may offset payments.
4.3 Maintenance & Support Fee is exclusive of sales taxes or VAT. If applicable, any such taxes, whether levied on Orpak or not, will be paid by the Customer. At Orpak’s sole discretion, Orpak may pay such taxes and then charge the Customer for such taxes and reasonable expenses incurred thereby.
4.4 Unless otherwise agreed, all charges will be in US$.
5. ORPAK’S OBLIGATIONS & WARRANTIES
5.1 Orpak represents and warrants that the Services will be performed by trained personnel in a workmanship manner.
5.2 Orpak will provide the Services during the Initial Term or any Renewal Terms, subject to full payment. Orpak shall provide the Services to its Customer and it is the role of Customer to provide first line support to its end users and/or its own customers as detailed under the SLA.
Orpak shall not provide the Services where the Services are required to restore any malfunctioning or failed Equipment where the malfunction or failure results from or is caused by any of the exclusions set out in Annex D (the “Exclusions”)
5.3 Orpak shall not be liable for delay in performance if such delay is caused by unavailability of information, material, personnel or any other item or factor, which is to be furnished to Orpak by the Customer.
5.4 Orpak shall not be liable to any failure of other products or equipment held by the Customer. Orpak will cooperate with the customer and the other equipment vendors with the aim of resolving such problems, all subject to and pursuant to the terms of this MSA and the SLA.
5.5 Orpak shall not be liable to Equipment that have been subject to misuse, neglect, accident, or modification or which have been altered by unauthorized personnel.
5.6 Portions of the Software may contain or be derived from materials of third party licensors, which may be subject to additional terms. Orpak’s liability to provide Services to such third-party software shall be subject to that third-party software life-cycle and longevity.
6. CUSTOMER’S OBLIGATIONS.
6.1 Ensure that the Equipment is installed and kept in suitable premises and under suitable conditions and notify Orpak promptly if the Equipment is discovered to be operating incorrectly;
6.2 All reasonable times permit full and free access to the customer’s site and to the Equipment to Orpak, its employees, contractors and agents, and provide them with adequate and safe working space (to include any requirements under any applicable health and safety legislation), and any telecommunications facilities as are reasonably required to enable Orpak to perform the Services;
6.3 Provide Orpak with any information that is reasonably requested in the performance of the Services;
6.4 Take any steps reasonably necessary to ensure the safety of Orpak personnel when attending the Site;
6.5 Not allow any person other than Orpak’s to maintain, alter, modify or adjust the Equipment;
7. ORPAK’S LIMITS OF LIABILITY.
7.1 Nothing in this Agreement shall limit the liability of Orpak to the Customer for: (i) death or personal injury resulting from its negligence; (ii) fraudulent misrepresentation; (iii) any liability which cannot be excluded by law.
7.2 Except as stated in clause 7.1, the aggregate liability of Orpak to the Customer, whether in contract or tort (including negligence and negligent misstatement) or for misrepresentation, breach of statutory duty or otherwise arising under or connection with this Agreement (including liability for recovery of sums paid by the Customer and for all damages, costs and expenses) with respect to all claims arising under or in connection with this Agreement shall be limited to an amount not exceeding 100% of the paid by the Customer during the Term of this MSA.
7.3 Subject to clause 7.1, in no event shall Orpak be liable for any tortious loss (including negligence and negligent misstatement), misrepresentation, breach of statutory duty or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not Orpak is advised of the possibility of loss, liability, damage or expense): loss of revenue; loss of actual or anticipated profits (including for loss of profits on contracts); loss of the use of money; loss of anticipated savings; loss of sales or business; loss of operating time or loss of use; loss of opportunity; loss of or damage to goodwill or reputation; loss of, damage to or corruption of data; or any indirect or consequential loss or damage howsoever caused.
7.4 It is the Customer’s responsibility to ensure that the Services are suitable for its needs. In particular, except as expressly set out in this Agreement, Orpak expressly disclaims all warranties of merchantability, satisfactory quality or fitness for a particular purpose or that use of the Services or any part will result in any economic advantage, increase in profits or reduction in costs.
7.5 It is Customer's responsibility to ensure the Equipment is operated on a duly secured environment and that all the data incorporated on the Equipment is manages in accordance with all applicable regulations.
Orpak may, in its sole discretion, subcontract any or all of the work to be performed under this Agreement, but will retain responsibility for the work subcontracted.
9.1 Without prejudice to any other rights or remedies of Orpak, Orpak may terminate this Agreement with immediate effect by written notice if the Customer fails to pay all or any the Maintenance & Support Fee by the due date (save to the extent that there is a bona fide dispute in relation to the whole of the amount unpaid) and continues to fail to pay such sums for 14 days after receipt of written notice to do so from Orpak.
9.2 In addition, Orpak may terminate this Agreement subject to 30 days’ prior notice to the Customer in the event that in the event that Customer, continues to use the Services for standard operational Issues which should be common knowledge for all Orpak’s partners and customers;
9.3 This Agreement may be terminated by a Party upon the occurrence of any of the following events:
9.3.1 immediately by either party on written notice, if the other is in material breach of an obligation under this Agreement and in the case of any such breach capable of remedy has failed to remedy the breach within a period of 30 days after receipt of written notice to do so;
9.3.2 in the event of an adjudicated insolvency of the other party hereto; the commencement by or against the other party hereto of any case or proceeding under any bankruptcy, reorganization, insolvency or moratorium law, or any other similar law (if such case or proceeding is not dismissed within sixty (60) days after commencement); the appointment of any receiver, trustee or assignee to take possession of the properties of the other party hereto; if the other party hereto makes an assignment for the benefit of its creditors or similar arrangements, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within sixty (60) days after the date of said commencement, assignment, liquidation, or dissolution of the other party hereto;
9.4 Upon termination of this Agreement, the Customer shall immediately pay all outstanding amounts owed to Orpak pursuant to this Agreement.
9.5 Termination or expiry of this Agreement for any reason shall be without prejudice to the accrued rights of the parties on the date of such termination or expiry.
10.1 The Customer acknowledges that all information marked “confidential,” as well as any other information unique to Orpak’s business operation, which is revealed to the Customer in connection with this Agreement, is of substantial value to Orpak, and that this value would be impaired if such information would be disclosed to third parties. The Customer agrees that it will keep confidential all proprietary information and will not divulge any such information to any third party without the written permission of Orpak.
10.2 For the purposes of this Agreement, “Confidential Information” shall mean certain technical or business information of Orpak or Orpak’s affiliates (“Discloser”) which the Customer (“Recipient”) may have access to, or otherwise become aware of, prior to expiration or termination of this Agreement that is considered by Discloser as proprietary information, including, but not limited to, specifications, drawings, data, plans, intellectual property, analyses, manuals, records, files, memoranda, reports, historical financial statements, financial projections, budgets, historical or projected sales, capital spending budgets or plans, the identity of key personnel, pricing, call rates, , and all Customer or Orpak specific information. Confidential Information shall not include information:
10.2.1 generally available to the public other than as a result of a disclosure by the Recipient;
10.2.2 provided to the Recipient on a non-confidential basis from a source that is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Discloser;
10.2.3 demonstrably developed by or on behalf of the Recipient independently of the Recipient’s receipt or discovery of the Recipient’s information; or
10.2.4 demonstrably in the Recipient's possession or known to the Recipient prior to the Recipient’s receipt or discovery of the Discloser’s information.
10.3 The Customer shall, upon termination of this Agreement, return any information that is marked as confidential to Orpak
11. INTELLECTUAL PROPERTY
As between Orpak and the Customer, all intellectual property rights created in the course of the Services which subsists now or at any time in the future shall be the exclusive property of Orpak. To the extent that any intellectual property rights created in the course of the Services vests in the Customer, the Customer assigns (by way of assignment of present and future rights) without payment all such intellectual property rights to Orpak with full title guarantee.
12. DATA PROTECTION
The parties agree to comply with the relevant provisions of the provisions of the applicable local Data Protection laws in its processing of such personal data.
13. FORCE MAJEURE
Neither party shall be liable for any failure to perform, or for any delay in performing any of its obligations hereunder, caused by circumstances beyond its reasonable control or which make performance commercially impracticable. Such circumstances include, but are not limited to, fire, storm, flood, earthquake, hurricane, tornado, explosion, accident, acts of public enemies, war, rebellion, insurrections, sabotage, epidemic, quarantine restrictions, labour disputes, labour shortages, transportation embargoes or delays, acts of God, acts of any government or of any agency thereof, judicial actions or any other such external occurrences.
14.1 Orpak shall be able to assign, transfer (in whole or in part), charge, declare a trust over or deal in any manner with this Agreement or the benefit or burden of or the rights under this Agreement. The Customer shall not without the prior written consent of Orpak assign, transfer (in whole or in part), charge, declare a trust over or deal in any manner with this Agreement or the benefit or burden of or the rights under this Agreement.
14.2 No amendment of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.
14.3 Except as otherwise stated in this Agreement, the rights and remedies of each party under this Agreement are in addition to any other rights or remedies under this Agreement or the general law, and may be waived only in writing and specifically. Delay in exercising or non-exercise of any right or a partial exercise of any right under this Agreement is not a waiver of that or any other right under this Agreement. Waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
14.4 If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement or the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement. The parties shall negotiate in good faith to modify any such provisions so that to the greatest extent possible they achieve the same effect as would have been achieved by the invalid or unenforceable provisions.
14.5 This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties relating to such subject matter.
14.6 Each party acknowledges to the other that it has not been induced to enter into this Agreement by nor has it relied upon any representation, promise, assurance, warranty or undertaking (whether in writing or not) by or on behalf of the other party or any other person save for those contained in this Agreement. Accordingly, each of the parties acknowledges and agrees that the only remedy available to it in respect of the subject matter of this Agreement shall be for breach of contract under the terms of this Agreement. Nothing in this Agreement shall exclude liability for fraud or fraudulent misrepresentation.
14.7 Notwithstanding any provision of this Agreement to the contrary, the provisions of clauses 7 , 9, 10, 11 and 14 and any other clauses which expressly or impliedly survive expiry or termination of this Agreement for any reason whatsoever shall continue in full force and effect after expiry or termination.
14.8 All notices between the parties with respect to the Agreement shall be in writing and signed by or on behalf of the party giving it. Any notice shall be duly given (i) on delivery if delivered by hand or (ii) 48 hours after sending if sent by first class post or special or recorded delivery (or other “proof of delivery” or “proof of posting” service that Royal Mail may from time to time offer). Notices shall be sent to the addresses set out under this Agreement.
14.9 This Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of Israel and the parties irrevocably submit to the exclusive jurisdiction of the Tel Aviv Competent Court.
Del-Pak Systems LTD Customer
Name & Title: _____________________________ Name & Title: _____________________________
Date: _____________________________ Date: _____________________________
Signature: _____________________________ Signature: _____________________________
ANNEX A – LIST OF EQUIPMENT
ANNEX B – SERVICE LEVEL AGREEMENT
1. Customers’ Support Center. Orpak global CSC provides Level 3 support. Level 1 & 2 support is done by Orpak’s local subsidiaries and distributors, as detailed as follows:
- Level of Support: Level 1 – Call Center
Provided By: Distributor
• Call reception and dispatching
• Solution for generic issues
- Level of Support: Level 2 (Site Level)
Provided By: Distributor
• On-site intervention for hardware/ software/ network problems
• Forecourt and indoor peripherals
- Level of Support: Level 3
Provided By: Orpak CSC
• Traces and logs analysis
• Issues/ bugs fixing
• Patches and customer releases
• Software upgrades
If a problem cannot be solved locally – it is being escalated to Orpak Customer Support for a deeper analysis. In this case if a bug is found, the problem is escalated to the R&D (level 4) for s/w fix or patch.
1. Orpak Support Package
- Package Type: Silver (Basic) Package
Remote support coverage: Orpak Business hours: 9AM – 5PM, SUN – THU
- Package Type: Gold Package
Remote support coverage: Customer Local Business hours: 9AM – 5PM, MON – FRI
- Package Type: Platinum Package
Remote support coverage: 24/7
2. Error severities:
Each error will be assigned by the Customer in collaboration with Orpak one of the following priority levels:
- Critical – (Level 1 high priority) : critical error that substantially affects the service (Software) or its availability
- Major – (Level 2 medium priority) : less-than-critical errors which affect the service (Software) or Customer’s business operations
- Minor – (Level 3 low priority) : errors which do not substantially affect the services (Software) or its availability
3. Response time definition
Priority level / Response time*
Critical (SL1) - 4 hours
Major (SL2) - 1 day
Minor (SL3) - 3 days
Within regular office hours
* Time during which Orpak must log the error and respond to the Customer that the error is logged and being processed.
ANNEX C - MAINTENANCE & SUPPORT FEE
ANNEX D – EXCLUSIONS
1. Work to equipment casing, including deterioration of glass, glass fibre of acrylic panels including stickers / decals and corrosion.
2. Electrical cables external to the pumps and/or equipment.
3. Testing of lines or tanks
4. All modifications to Equipment e.g. software updates, changes of grade, changing of internal pipework
5. All accident damage repairs. Including hose, nozzle detachment, stickers / decals
6. Equipment vandalism, abuse or misuse, including staff misuse
7. Any adjustment, repair or replacement of parts required to change the measuring performance of the Equipment if the current performance of those parts are within the current weights and measures inspection tolerances specified by applicable legislation.
8. All work considered to be remediation, i.e., the activity required to make equipment operational following incorrect installation or interference from a 3rd party.
9. Damage caused by water ingress.
10. Calls instituted as a result of operator error or where the Customer fails to reasonably validate the fault in question.
11. Damage caused by power fluctuations or failure including those due to climatic factors and or rodent damage
12. Work carried out on other equipment that is not listed on the Contract service schedule.
13. Replacement parts where equipment modifications have been made (standard parts only).
14. All contract exclusions undertaken on a time and material basis against a separate order.
15. Any jobs where no fault is found upon attending site, on contracted equipment, site running on attendance or call not cancelled prior to engineer’s arrival
16. Replacement of lost / missing keys or site equipment
17. Replacement of consumable parts including batteries, printer ribbons, replacement pin pads and cables unless a quality defect can be clearly established.
18. A defect in the manufacturer's design of the Equipment;
19. Faulty materials or workmanship in the manufacture of the Equipment;
20. Any maintenance, alteration, modification or adjustment performed by persons other than Gilbarco or its employees or agents;
21. The Customer or a third party moving the Equipment;
22. The use of the Equipment in breach of any of the provisions of the agreement under which the Equipment was supplied;
23. Repairs required due to the neglect or misuse of the Equipment.