GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
You agree with Chyma as follows:
1. PROVISION OF SERVICES
a. Subject to the provisions of the Service Agreement, Chyma will use its reasonable commercial efforts to supply the Services.
b. Chyma may publicly refer to You orally and in writing as a customer of Chyma.
c. Chyma shall have the right, at any time, to perform a credit reference check and/or a trade reference check with respect to Your circumstances or status, whether financial or otherwise.
2. ADDITIONAL SERVICE SPECIFICATIONS
a. You and Chyma may, by completing and signing a Service Specification agree to the supply of additional Services subject to and in accordance with the provisions of the Service Agreement.
b. Where Chyma supplies more than one Service under the Service Agreement, Chyma may supply each Service separately and treat the Service Agreement as severable in respect of any one or more of those Services.
c. Any breach or failure on the part of Chyma in respect of any Service does not adversely affect or prejudice Chyma’s rights or remedies in respect of any other Service.
3. VARIATION OF A SERVICE
a. Chyma may vary a Service Agreement at any time. Such variation will become effective 30 Days after notice of the variation to You. Continued use of that Service by You after the effective date will constitute acceptance of the variation by You.
b. Except as provided in sub-clause 3(a), the Service Agreement may not be varied, except by agreement in writing signed by the Parties.
4. CHARGE AND DEPOSIT
a. You must pay all charges for the Services on their Payment Due Date. All charges paid to Chyma by You shall be non-refundable under all circumstances. Chyma reserves the right to demand payment for charges other than those specified in the Service Specification in the event that additional time and resources are reasonably utilised in order to provide the Service.
b. Unless otherwise specified in a Service Specification, all charges are inclusive of wholesale sales, value added, goods and services taxes, tariffs, duties or impositions of a similar nature imposed by any government or other authority.
c. If full payment of a charge has not been made on its Payment Due Date, Chyma may charge interest on all sums outstanding at the rate of 2% per month on a daily basis from the Payment Due Date to the date full payment is received by Chyma and charge You any collection and handling fees incurred by Chyma.
d. Payment terms are as per your quote or proposal.
e. You will be liable for all charges whether or not a Service was used by You or by any person with or without Your authority, knowledge or consent.
f. If You do not query any charge stated in an invoice within 10 Days of the date of the invoice, then You will be deemed to have accepted the invoice.
g. In case of disputes over any Service usage or any part of any charge:
i. Chyma’s decision based on its Service usage records and those of any third party who may assist Chyma to provide any Service shall be final and binding on You; and
ii. You must not withhold payment of any part of any charge which is in dispute.
5. EFFECTIVE DATE, SERVICE REQUEST DATE, COMMENCEMENT DATE AND DURATION
a. The Service Agreement shall become effective on the Effective Date and shall be in force until the Service Agreement is terminated or expires pursuant to the provisions hereof.
b. You acknowledge that:
i. the Service Request Date is only an estimate and Chyma shall not be bound by the same; and
ii. Chyma will not be liable for any delays or for any losses, costs, damages or other expenses incurred by You directly or indirectly due to any failure to meet the Service Request Date.
c. If Chyma is unable to adhere to a Service Request Date as a direct or indirect result of an act or omission or breach of the Service Agreement by You, Chyma may:
i. make an additional charge for time, overtime, travel, materials, extra computer time or resource rationalisation; and
ii. if such act or omission or breach causes delay exceeding thirty (30) Days beyond the Service Request Date, terminate the Service Agreement, and pursue other remedies available under the Service Agreement or at law and/or equity including but not limited to retaining all charges already paid by You to Chyma.
d. Chyma shall notify You of the Commencement Date.
e. You commit to subscribe to the Service for the Minimum Term. Thereafter, and subject to any contrary provision in this Service Agreement, the Service Agreement shall continue until either party provides the other with thirty (30) Days prior written notice of termination.
f. If the Service Agreement is terminated for any reason before the expiry of the Minimum Term, all unpaid charges corresponding to the remainder of the Minimum Term will immediately become due and payable to Chyma by You as a pre-termination penalty.
g. The Service Agreement shall automatically expire upon the expiration or termination (for whatever reason) of:
i. the Service, if only one Service is supplied by Chyma under the Service Agreement; or
ii. the last remaining Service, if more than one Service is supplied by Chyma under the Service Agreement.
6. LEASED EQUIPMENT
a. The Leased Equipment shall at all times remain the property of Chyma or (as the case may be) the Third-Party Service Provider.
b. You shall:
i. keep the Leased Equipment in good and clean condition at all times;
ii. keep the Leased Equipment at all times at the Site(s) within Your possession and control;
iii. ensure that the Leased Equipment is housed, used and operated in a suitable environment and in a skilful and proper manner, and in accordance with relevant user guides and all reasonable instructions by Chyma with respect to the same;
iv. notify Chyma of any change in Your circumstances which might otherwise impede Chyma in tracing Your location or that of the Leased Equipment;
v. insure the Leased Equipment on terms satisfactory to Chyma;
vi. upon demand by Chyma in writing, promptly return the Leased Equipment to Chyma; and
vii. comply with the terms and conditions of the relevant manufacturers for the Leased Equipment.
c. You may not at any time:
i. do or suffer to be done anything with regard to the Leased Equipment which might in any way prejudice any rights or interest of Chyma or (as the case may be) the Third-Party Service Provider; or
ii. alter or remove any label or other markings which are on the Leased Equipment when delivered; or
iii. tamper with the Leased Equipment, or any integrated circuit, component or protection facility contained therein; or
iv. permit any person (other than Chyma and any person authorised by Chyma in writing) to carry out any repairs or maintenance to, or any removal or replacement of, the Leased Equipment.
d. Notwithstanding other terms of the Service Agreement, if the Leased Equipment proves to be defective under normal use due to defective materials, design and/or workmanship, Chyma may at its sole option either repair the Leased Equipment or replace the Leased Equipment with an Equipment of the same or comparable type.
e. Upon the date of termination or expiration of the Service Agreement (howsoever caused), You shall promptly (and in any event within five (5) Days from such date of termination or expiration) return at Your own cost the Leased Equipment to Chyma.
f. If You fail to comply with any of the obligations in subclause (e) or there is any loss or damage to the Leased Equipment, You must pay, upon demand by Chyma, an amount equal to the full retail price of the Leased Equipment or any compatible replacement as shall be solely determined and specified by Chyma and all other amounts (of whatever nature) Chyma may be held liable for by third parties due to such non-compliance, loss or damage. Nothing shall preclude Chyma from exercising any other remedies available to it under the Service Agreement, in law and/or equity.
g. When the Service Agreement terminates or expires, or You damage the Leased Equipment, You authorise Chyma to enter the Site(s) and take whatever steps are appropriate to disable or modify the Leased Equipment or to remove it.
7. SALE OF EQUIPMENT
a. Title in any Equipment sold to You remains with Chyma or the third party owner until Chyma has received payment in full on or before the Payment Due Date. If full payment is not received by the Payment Due Date, You must, upon written demand of Chyma, immediately re-deliver the Equipment to Chyma.
b. You may not part with, sell, charge, modify, or otherwise deal with the Equipment unless title has lawfully passed to You.
c. Risk in the Equipment will pass to You on delivery, including but not limited to loss, theft, damage or destruction.
8. SOFTWARE
a. Chyma grants to You a non-exclusive and non-transferable license to store, run and use the Software subject to the provisions of the Service Agreement.
b. You shall not, and shall procure that all persons under Your control shall not, copy, sell, lease, alter, modify, adapt, translate, decompile, disassemble or reverse engineer the Software or attempt to do any such thing.
c. The provisions of clauses 6(e), (f) and (g) shall apply to the Software.
9. YOUR RESPONSIBILITIES
a. You agree to:
i. ensure that any information which You give Chyma relating to Your use of the Services is complete and accurate.
ii. advise Chyma promptly if there is a change in the Data already furnished to Chyma including but not limited to Your premises or postal address.
iii. follow Chyma ’s reasonable directions about the use of the Services and any modifications which You need to make to Your equipment so that You can use the Services.
iv. not use any part of the Service for any obscene, offensive, improper, immoral, defamatory, indecent, abusive, menacing or unlawful purpose or for any unsolicited advertising messages or promotions nor allow others to do so.
v. use the Services for lawful purposes only and comply with all applicable laws relating to Your use of the Service.
vi. not use the Services or any Equipment in a way which interferes with or disrupts Chyma’s Network.
vii. ensure that anyone else who uses the Services does so in a manner which is consistent with Your obligations under the Service Agreement.
viii. comply with all of Chyma’s instructions and rules and regulations relating to the Service, as may be changed by Chyma from time to time.
10. THIRD PARTY AGREEMENT
a. You shall enter into Third Party Agreements as are specified in the Service Specification.
11. DATA PROTECTION
a. You acknowledge and agree that the Data may be processed by:
i. Chyma and its affiliated or related companies in accordance with the policies and practices of Chyma (as may be amended by Chyma from time to time); and
ii. subcontractors and agents (including but not limited to Third-Party Service Providers) of Chyma in connection with processing orders and the delivery, installation, support and maintenance of a Service.
b. You acknowledge that processing of the Data may involve transfer of the Data out of the Country.
c. You may at any time notify Chyma in writing that You do not wish Chyma to process the Data, provided that such processing is not reasonably necessary for the performance of Chyma’s obligations under the Service Agreement.
d. You may ask to see the Data and request Chyma to correct any such information that is incorrect.
12. CONFIDENTIALITY
a. A Party must not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.
b. A Party will not be in breach of sub-clause a where it is legally compelled to disclose any of the other Party’s Confidential Information in which event the disclosing Party will immediately notify the other Party in writing of that fact and of all relevant surrounding circumstances.
c. Each Party will take all reasonable steps to ensure that its employees and agents, and any sub-contractor engaged for the purposes of the Service Agreement, do not make public or disclose the other Party’s Confidential Information.
d. Notwithstanding any other provision herein, Chyma may disclose the terms of the Service Agreement to its affiliated or related companies, solicitors, auditors, insurers and accountants.
13. INTELLECTUAL PROPERTY RIGHTS AND EDITORIAL CONTROL
a. You acknowledge that all Intellectual Property Rights and other rights in any Service (whether developed individually, collectively or jointly with You) including but not limited to the Equipment and the Software are either owned by or licensed to Chyma.
b. You must not:
i. use any Chyma or its affiliated or related companies’ Trade Marks without prior written consent of Chyma; or
ii. take any action that may interfere with or diminish Chyma or its affiliated companies’ rights, title and/or interest in any of the Trade Marks.
14. SUSPENSION OF SERVICES
a. Chyma may suspend, disconnect or discontinue any Service in whole or in part at any time without notice and without compensation if in Chyma’s reasonable opinion:
i. it is necessary to safeguard the provision of a Service or the integrity of any Network;
ii. any Network or Equipment fails or requires modification or maintenance;
iii. there is or has been unauthorised, unlawful or fraudulent use of any Service or Your use of any Service or Equipment is causing or may potentially cause damage or interference to any Software, Network or Equipment or the contravention of any statutory requirement;
iv. it is necessary to comply with a direction, order or request of any government authority or other competent authority; or
v. You do not comply with any of the terms of the Service Agreement or a Third-Party Agreement.
b. Chyma may charge for reconnection or resumption of a Service and require revised terms and conditions following such suspension, disconnection or discontinuance.
15. TERMINATION
a. Chyma may terminate the Service Agreement or the supply of any Service (in whole or part) by giving written notice to You with immediate effect if:
i. You fail to pay Chyma a charge by its Payment Due Date; or
ii. You are in breach of any provision of the Service Agreement or a Third-Party Agreement and fail to rectify the default within ten (10) Days prior written notice; or
iii. You fail to comply with any reasonable requirements of Chyma in relation to the use of a Service or any Networks within ten (10) Days prior written notice; or
iv. You become insolvent or bankrupt or Chyma has reasonable cause to believe that You are unable to pay Your debts as they fall due; or
v. You, without Chyma’s express written authorisation use, modify, alter or tamper with the Network; or
vi. any of the information provided by You under or pursuant to the Service Agreement is found to be false or misleading or Chyma has reasonable ground to believe that such information is false, misleading or inaccurate; or
vii. Chyma ceases to make the Networks (if applicable) or a Service or any part thereof available for any reason.
b. Upon the termination or expiration of the Service Agreement or supply of any Service (or any part thereof), all licenses, rights and privileges granted to You under the Service Agreement will cease and Chyma may (without prejudice to any of its rights or remedies) also:
i. repossess any Equipment and/or Software that is not owned by You;
ii. retain any moneys paid to Chyma;
iii. charge a reasonable sum for work performed in respect of which work no sum has been previously charged or paid;
iv. be regarded as discharged from any further obligations under the Service Agreement or in respect of any Services; and
v. pursue any additional or alternative remedies provided by law and/or equity.
16. LIMITATION OF LIABILITY
a. Chyma disclaims all conditions warranties (statutory, express or implied), including, without limitation, the implied warranties as to:
i. the title, fitness for a particular purpose, merchantability, accuracy or standard of quality of a Service (or any part thereof);
ii. the results or data that may be obtained from the use of a Service; or
iii. that a Service will be uninterrupted, error free, virus free, reliable or secure.
b. In no event will Chyma be liable for any loss incurred by or any damage howsoever caused to You or any person arising out of or in connection with the Service Agreement or a Service provided or omitted to be provided under the Service Agreement, whether in Service Agreement, tort, under statute or otherwise and, whether direct or indirect, consequential or contingent, and whether foreseeable or not, including without limitation any financial loss or loss of business, profit, savings, revenue, data, goodwill or use of any equipment.
c. Any claim by You against Chyma arising out of the Service Agreement must be notified in writing to Chyma within twelve (12) months of the incident giving rise to such claim or You will be deemed to have waived Your rights in respect of such claim.
d. Nothing under this clause will limit or exclude Chyma’s liability which is not permitted to be limited or excluded under the law of the Country.
e. The total liability of Chyma in respect of a Service will not exceed the total charges paid by You to Chyma for a Service for the immediately preceding three (3) months prior to any incident (or in case of a series of incidents arising from a common cause immediately preceding the first of such incidents) giving rise to a claim.
f. Chyma’s shareholders, employees, agents, Third Party Service Providers and sub-contractors shall have the benefit of the rights, exclusions and limitations of the provisions in this Clause as if such provisions were expressly for their benefit.
17. MISCELLANEOUS
a. The Service Agreement supersedes all understandings or prior agreements, whether oral or written, and all representations or other communications You may have had with Chyma for the provision of the Services.
b. You must not transfer or assign any of Your liabilities or rights under this Service Agreement to any other person without the prior written consent of Chyma. Chyma may appoint agents, assign, transfer, license or sub-contract the whole or any part of its rights and/or obligations contained in the Service Agreement to any person at any time.
c. Chyma will not be liable to You in the event that Chyma is unable to perform an obligation or provide a Service (or any part thereof) to You because of any Force Majeure, interruption or termination of a Service or Chyma ’s refusal to provide a Service pursuant to the provisions of the Service Agreement.
d. You agree to indemnify Chyma fully and effectively against any action, liability, cost, claim, loss, damage, proceeding, expense (including without limitation, legal costs) suffered or incurred by Chyma arising from or which is directly or indirectly related to:
i. the enforcement of the Service Agreement against You;
ii. Your use of a Service and any other person’s use of a Service, including but not limited to claims for defamation, infringement of Intellectual Property Rights or other proprietary rights; and
iii. any breach or non-observance of any term of the Service Agreement and/or Third-Party Agreement by You or any other person.
e. Any notification or invoice mailed by Chyma under this Service Agreement, addressed to You at Your business premises or last known mailing address, will be treated as having been received by You:
i. within forty-eight (48) hours of posting; or
ii. on the day of personal delivery to Your address; or
iii. immediately upon faxing if the transmission report indicates that the fax transmission was successful; or
iv. immediately upon sending the e-mail.
f. No delay, neglect or forbearance by either Party in enforcing against the other any provision of this Service Agreement will be a waiver, or in any way prejudice any right, of that Party.
g. If any provision of the Service Agreement is unenforceable, the rest of the Service Agreement will remain fully enforceable.
h. The documents comprising the Service Agreement shall be read in the following order of precedence:
i. a Service Specification;
ii. any Special Terms and Conditions;
iii. the clauses of this document; and iv the provisions of a document expressly incorporated by reference.
iv. Where any conflict occurs between the provisions contained in two or more of the documents forming the Service Agreement, the document lower in the order of precedence shall where possible be read to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document. Where any conflict occurs between two documents at the same level of precedence, the later dated document shall prevail.
i. The provisions of the Service Agreement which are capable of having effect after the expiration or termination of the Service Agreement or of the Service (or any part thereof) shall remain in full force and effect following the expiration or termination of the same.
j. The Service Agreement is governed by the laws of the Country. Each Party submits to the non-exclusive jurisdiction of the courts of the Country.
18. DEFINITIONS In these terms and conditions unless the contrary intention appears:
Account Number means the number so described in the Service Agreement.
Chyma means Chyma Pty Ltd.
Commencement Date means the date on which Chyma notifies You that the Service is available for use.
Confidential Information means the confidential information of a Party including but not limited to the terms of a Service Specification, technical information of Chyma and access methods authorised by Chyma from time to time (for example, personal identification numbers and passwords) but excludes any information which is public knowledge (otherwise than as a result of a breach of confidentiality by the other Party). Country means Australia.
Data means any information about You, Your shareholders, employees and customers provided to Chyma in connection with a Service. Day includes public holidays and Sundays.
Effective Date means the date the Service Agreement is executed by Chyma and on which it becomes effective, as specified in the cover page of this Service Agreement. Equipment means the equipment (including any related Software) and component parts supplied by or on behalf of Chyma or installed or placed at Your premises for the purpose of providing a Service, as described in a Service Specification.
Force Majeure means a circumstance beyond the reasonable control of Chyma resulting in Chyma being delayed or unable to observe or perform an obligation under the Service Agreement.
General Terms and Conditions means this document described as such.
Intellectual Property Rights means patents, Trade Marks, registered designs, applications of any of the above, copyright, semiconductor or circuit layout rights, and other similar protected rights in any country.
Leased Equipment means the Equipment identified and specified as such in the Service Specification.
Minimum Term means the minimum term specified in a Service Specification to be computed starting from the Commencement Date.
Network means any telecommunications and/or computer network or system owned or operated by Chyma, its agents or Third-Party Service Providers through which Chyma makes a Service available.
Party means either Chyma or You as the context requires.
Payment Due Date means the date or dates for payment of a charge for a Service as specified in (a) a Service Specification; or (b) if no payment due date or dates are specified, fourteen (14) Days after Chyma issues an invoice for payment of the charge. Service means the services supplied to You as set out in a Service Specification; Services refers to each and every Service to be supplied under the Service Agreement.
Service Agreement means the service agreement for the supply of a Service, between You and Chyma which is comprised of the cover sheet, these General Terms.
Service Request Date means the date requested by You for the commencement of the Service, as specified in the Service Specification.
Service Specification means a written Service Specification of any Service, in a form prescribed by Chyma signed by or on behalf of the Parties and identified by the Account Number.
Service Specification Signing Date means the date the Service Specification is executed by Chyma, as specified in a Service Specification.
Software means software that is to be licensed to You in connection with the Service, as described in the Service Specification.
Special Terms and Conditions means a document described as such. Third Party Agreement means an agreement which You must enter into with a third party before Chyma can provide the Service as specified in the Service Specification.
Third-Party Service Provider means any third party service provider or contractor on whom Chyma depends in the provision of any Service or any part thereof or whose service, license, approval or fulfilment of certain obligations to Chyma will affect Chyma’s provision of a Service or any part thereof.
Trade Marks means any trade marks, service marks, trade names, domain names, logos and foreign language equivalents whether registered or not. You, Your, Yours or Customer means the customer named or described in the Service Agreement.