NEXION Networks Pty Ltd ABN 11 617 824 923
Version 1.1 – This document was last updated on 11 December 2019.
This is the Service Level Schedule referred to in an order for Services placed by CLIENT with NEXION Networks Pty Ltd.
NEXION Networks will provide CUSTOMER with services as set out in Signed or Accepted NEXION Networks Solution Proposal, under contract term within.
This SERVICE AGREEMENT includes the attached terms and conditions that will apply to the provision of Services (as hereinafter defined) by NEXION Networks pursuant to an executed NEXION Networks Signed or Accepted Proposal (as hereinafter defined). Except for those incorporated in a NEXION Networks Signed or Accepted Proposal, any different or additional terms of a purchase order, confirmation or other forms after the date hereof shall have no force or effect unless specifically agreed to in writing by both parties. By signing below, the parties agree to the terms of this SERVICE AGREEMENT.
Definitions as used in the SERVICE AGREEMENT or a NEXION Networks Signed or Accepted Proposal
“Affiliate” means any entity that directly, or indirectly through one or more intermediaries, is controlled by, is under common control with, or controls, a Customer or NEXION Networks. For purposes of this control or direction over shares, securities or other voting instruments of such entity carrying fifty percent (50%) or more of the unrestricted voting rights or powers entitling the holder thereof to direct (or to cause the direction of) or to manage the affairs and business of such entity.
“Controls”, “controlled”, and “controlling” each has a similar meaning.
“Colocation Services” means server racks and power distribution boards within those racks.
“Confidential Information” means all information (in whatever format) designated as such by the Customer or NEXION Networks , together with such information which relates to the business affairs, customers, products, developments, trade secrets, know-how and personnel of either party and which may reasonably be regarded as the confidential information of the disclosing party and expressly includes the SERVICE AGREEMENT and any NEXION Networks Signed or Accepted Proposals.
“Consulting Services” mean human resources provided by NEXION Networks to give domain-specific advice or provide assistance by performing work as defined in this SERVICE AGREEMENT.
“Documentation” means the user and other technical manuals provided to the Customer with the Services.
“Fault” means any inconsistency in the performance of an Infrastructure Service that impacts access and use of that Infrastructure Service.
“Fees” means fees for the Services performed by NEXION Networks as agreed by the parties in the NEXION Networks Signed or Accepted Proposal and excludes out of pocket expenses.
“Intellectual Property Rights” means all intellectual property or all intellectual property rights, registered or unregistered including but not limited to copyright (including software), trademarks, service marks, trade secrets, patents, patent applications, designs, know-how, inventions moral rights other proprietary rights and any application or right to apply for registration of any rights referred to herein.
“Maintenance Services” mean human resources or automated infrastructure that manages or monitors equipment and software.
“Network” means the communications links that NEXION Networks installs at its site and are used by Customer and Customer End Users to connect to their contracted Services.
“NEXION Networks Signed or Accepted Proposal” means an order for the purchase of Services in accordance with NEXION Networks ’s standard format, as agreed by the parties from time to time.
‘‘NEXION Networks” means NEXION Networks PTY Ltd, ABN: 11 617 824 923 / ACN: 617 824 923 of Level 2, Building C, 355 Scarborough Beach Road, Osborne Park, WA 6017.
“Property” has the same meaning as assigned to it in clause 11.1.
“Price Model” means the pricing detailed in Schedule 1 to this SERVICE AGREEMENT.
“Rebates” mean the amounts specified to be payable by NEXION Networks because of an Infrastructure Service Fault as set out in the applicable NEXION Networks Signed or Accepted Proposal.
“SERVICE AGREEMENT” means the contract formed in accordance with clause 2 of this SERVICE AGREEMENT.
“Customer End User” means an end user who sub-lets the Services as defined in this SERVICE AGREEMENT provided by NEXION Networks, from the Customer.
“Services” means services, provided to Customer pursuant to a NEXION Networks Signed or Accepted Proposal executed by the parties and could include all or part of, Colocation Services, Maintenance Services, and Consulting Services.
“Service Levels” means the speed, rate, response time or other measures of performance set out in a NEXION Networks Signed or Accepted Proposal.
“Supplier” means a wholesale supplier of services, software, equipment, network or other suppliers who NEXION Networks may use from time to time to supply Services to Customer.
“Tax” means any tax, levy, impost, deduction, charge, rate, duty or withholding which is levied or imposed by a government authority (local, State, Federal or otherwise) from time to time, including any stamp, value added, goods and services or transaction tax, duty or charge, excluding taxes on profit or capital gains.
“Term” means the term of the SERVICE AGREEMENT that extends from the Effective date as specified in the NEXION Networks Signed or Accepted Proposal and shall remain in effect for a period of 7 years or as specified in a NEXION Networks Signed or Accepted Proposal.
1. Incorporation of Terms and Conditions.
The terms and conditions of this SERVICE AGREEMENT shall be deemed incorporated into each NEXION Networks Signed or Accepted Proposal executed by the parties and they shall together form the SERVICE AGREEMENT. In the event of any express conflict between any terms of this SERVICE AGREEMENT and the NEXION Networks Signed or Accepted Proposal, the terms of this SERVICE AGREEMENT will govern to the extent of the inconsistency.
2. Purchasing products and services
2.1. The Offer
Customer may procure Services from NEXION Networks by way of a Signed or Accepted NEXION Networks Solution Proposal, NEXION Networks will use commercially reasonable efforts to deliver such Services.
2.1.1. necessary out-of-pocket expenses invoiced in addition to time and materials fees;
2.1.2. deemed accepted upon delivery.
2.2. As soon as practicable after a NEXION Networks Solution Proposal is fully executed, NEXION Networks will make a request to VENDOR to deliver to the Customer the Services ordered, in accordance with the Service Levels set out in the relevant Signed or Accepted NEXION Networks Solution Proposal and for the Term set out in the Signed or Accepted NEXION Networks Solution Proposal.
2.3. If the parties have executed a NEXION Networks Signed or Accepted Proposal then NEXION Networks in will perform the Services in accordance with the NEXION Networks Signed or Accepted Proposal. The Customer shall in a timely manner and at its own expense actively co-operate with NEXION Networks and provide or make available to NEXION Networks all relevant resources, including, without limitation, all relevant information, documentation and staff reasonably required by NEXION Networks to enable NEXION Networks to perform its obligation under the NEXION Networks Signed or Accepted Proposal. NEXION Networks may suspend its obligations for NEXION Networks Signed or Accepted Proposals for Consulting Services only during such period that such conditions of access are not maintained and Customer agrees to reimburse NEXION Networks for any actual costs incurred because of such suspension at its then-current time and materials rates. NEXION Networks shall not be liable for failure to meet time frames or completion dates for Consulting Services only unless such failure is due solely to the negligence of NEXION Networks.
2.4. If either party proposes in writing a change to the scope or timing of the Services, the proposing party shall submit a copy of the proposed variations to the other party. The other party (or the receiving party) will be reasonable and in good faith consider and discuss with the proposing party the proposed change and a revised estimate for the costs for such change. The receiving party shall advise the proposing party within Fifteen (15) business days, or such other period as is agreed between them, of receipt of the proposed variations either:
(a) that the receiving party accepts the variation, revised timeline and associated charges; or
(b) that the receiving party rejects the variations, revised timeline and associated charges.
If the receiving party accepts the variations, the SERVICE AGREEMENT shall be deemed to incorporate the accepted variations, revised timelines and associated charges from the date upon which the receiving party notifies the proposing party that it accepts the variations. All proposed and accepted variations shall be recorded in writing by the parties and the relevant terms of this SERVICE AGREEMENT, to the extent stipulated in such varied document shall stand altered. For the avoidance of doubt, it is clarified that all unvaried terms of this SERVICE AGREEMENT and the NEXION Networks Signed or Accepted Proposal shall continue in full force and effect. The receiving party will not unreasonably withhold acceptance of the variations and if the receiving party rejects the proposed variations, NEXION Networks shall perform the Services in accordance with the unvaried SERVICE AGREEMENT.
2.5. Where required, acceptance tests will be mutually determined during the course of each Service project. Subject to any specific provision in the NEXION Networks Signed or Accepted Proposal, each deliverable will be deemed accepted if no certificate of acceptance or rejection has been received by NEXION Networks within Fifteen (15) business days after the deliverable made available for testing or placed into use by the Customer.
2.6. The Customer’s right to receive Services for the Term is conditional upon the timely payment of all Fees.
2.7. Customer may contact NEXION Networks technical assistance centre to resolve an error, defect, or malfunction in the VENDOR ’s Services.
2.8. Sub-Letting of Services
2.8.1. Customer represents and warrants that no sub-letting will take place.
2.9. Customer shall pay the Fees and related charges set forth in a NEXION Networks Signed or Accepted Proposal, and for any other amounts coming due hereafter, net thirty (30) days from the date of NEXION invoice. A service charge of one and one-half percent per month (or such lower amount as permitted by applicable law) may be applied to all invoices that are not paid on time. Customer agrees to pay all sales, use, value-added, goods and services, consumption, withholding, excise and any other similar taxes or government charges.
2.10. To receive Services as provided by NEXION Networks, all Services must be properly contracted and all Fees paid on time. NEXION Networks is not obligated to continue providing Services if Fees have not been paid.
2.11. NEXION Networks will not be obliged to resume performance of the Services until the outstanding invoice is paid. In the event of a dispute in relation to an invoice, the Customer shall pay the undisputed portion to NEXION in accordance with this clause. The disputed portion shall be referred to the dispute resolution process.
2.12. Customer will reimburse NEXION Networks for all reasonable out of pocket expenses (including travel and accommodation expenses) incurred by NEXION Networks in providing the Services within 30 days from the date of NEXION Networks invoice.
2.13. The Fees are exclusive of all applicable Taxes and Customer will pay any applicable Tax in addition to the Fees.
2.14. If withholding tax is payable in relation to any supply of Services, the Customer shall increase the amount of any payment to NEXION Networks so that the amount received by NEXION Networks is no less than the Fee.
3.1. NEXION Networks and its Suppliers do not warrant or represent the performance, accuracy, reliability or continued availability of the Services and the Network or that the Services and the Network will operate free from faults, errors or interruptions.
3.2. NEXION Networks and its Suppliers will, from time to time, conduct scheduled or unscheduled maintenance on the Network which may interfere with the provision of Services. NEXION Networks will use its best endeavours to provide Customer with 10 workings days’ notice of any scheduled maintenance where reasonably possible.
3.3. NEXION Networks will use reasonable efforts to rectify identified Faults within a reasonable period.
3.3.1. NEXION Networks is not responsible for rectifying Faults where the Fault arises in or is caused by its Suppliers or its Supplier networks outside its reasonable control but we will request that its Suppliers rectify such Faults.
3.3.2. Customer is responsible for repairing Faults relating to equipment, which is not owned by NEXION Networks.
3.4. NEXION Networks will use its best endeavours to provide the Services in accordance with the relevant Service Levels as set out in the NEXION Networks Signed or Accepted Proposal. The Customer is required to report to NEXION Networks, any error or failure by NEXION Networks in respect of the delivery and performance of the Services as set out in the NEXION Networks Signed or Accepted Proposal.
3.5. NEXION Networks may vary and update the Service Levels and Rebates by giving to the Customer 30 day’s written notice and this variance will not constitute a variance as contemplated in clause 3.5.
3.6. If in providing the Services, the Customer or a Customer End User must access facilities which are owned or leased by NEXION Networks, the Customer must and will ensure that a Customer End User will comply with the NEXION Networks Policies and Procedures and with any security, work, health and safety or building entry policies or procedures notified by NEXION Networks from time to time in writing.
4.1. NEXION Networks warrants that it has the right to enter into this SERVICE AGREEMENT and any related terms in NEXION Networks Signed or Accepted Proposal.
4.2. Customer warrants that it has the right to enter into this SERVICE AGREEMENT and any related NEXION Networks Signed or Accepted Proposal.
4.3. Whilst the Customer is receiving Services in accordance with a NEXION Networks Signed or Accepted Proposal, NEXION Networks will ensure that the Services, when used as permitted by NEXION Networks, will operate substantially as described in the NEXION Networks Signed or Accepted Proposal. NEXION Networks does not warrant the Customer or Customer End User’s use of the Services will be error-free or uninterrupted. NEXION Networks will, at no additional cost and at its sole obligation and Customer exclusive remedy for any break of this warranty, use commercially reasonable efforts to correct any reproducible error in the Service reported to NEXION Networks. This warranty shall immediately become void in the event of any modification being made to the Service without the prior written consent of NEXION Networks.
4.4. NEXION Networks warrants that any Services provided to Customer under a NEXION Networks Signed or Accepted Proposal will be performed with due care in a professional and workmanlike manner and will conform in all material aspects to the applicable contract.
4.5. For the avoidance of doubt, any and all commitments, indemnities and other terms and conditions offered by NEXION Networks with respect to the provision of Services are made directly to the Customer and do not extend to any third parties or Customer End Users or suppliers or partners of the Customer not party to this SERVICE AGREEMENT. To the extent permitted by law, NEXION Networks makes no warranties, express or implied or otherwise to any such third party including but not limited to implied warranties.
5. Limitation of Liability
5.1. Each party’s total cumulative liability, whether in contract or tort, negligence or otherwise, (a) in connection with any Service provided under a NEXION Networks Signed or Accepted Proposal, will not exceed one (1) times the amount of fees paid to NEXION Networks under such NEXION Networks Signed or Accepted Proposal; (b) in connection with any Services provided to a Term, will not exceed one (1) times the amount of fees paid to NEXION in the 12-month period immediately preceding the claim.
5.2. In no event will either party be liable for any consequential, indirect, exemplary, special, or incidental damages ( including additional costs arising from delay or increased inefficiency, loss of contracts or loss of use), or any lost data, lost profits, lost revenue, loss of anticipated saving, loss of production, business interruption, or lost opportunity, arising from or relating to the SERVICE AGREEMENT or any NEXION Networks Signed or Accepted Proposal (including arising from negligence), regardless of whether the loss was within the contemplation of the parties at the time of entering into the NEXION Networks Signed or Accepted Proposal or not.
5.3. Each party acknowledges that the Fees reflect the allocation of risk between the parties and that the other party would not enter into the NEXION Networks Signed or Accepted Proposal without these limitations on that party’s liability. In addition, Customer disclaims all liability of any kind of NEXION Networks suppliers and related companies. These limitations shall apply even if any other remedy fails of its essential purpose.
6.1. Each party agrees to indemnify the other against all losses, expenses, damages and legal costs incurred by NEXION Networks or the Customer (as applicable) arising directly from an officer, employee or contractor of the Customer or NEXION Networks, as the case may be:
6.1.1. acting unlawfully, deceitfully or being wilfully negligent; or
6.1.2. breaching this SERVICE AGREEMENT.
6.2. Customer agrees to indemnify NEXION Networks against all losses, expenses, damages and legal costs incurred by or awarded against NEXION for , personal injury or damage to property arising from any negligent or wilful act or omission of the Customer or the Customer End User, misuse or wrongful disclosure by the Customer of NEXION Networks or any third party’s Confidential Information, and breaches by the Customer of NEXION Networks or any third party’s Intellectual Property Rights, and against any claim made against NEXION Networks:
6.2.1. by a Supplier or any third party which arises from a negligent act or omission of the Customer or any Customer End User or any breach of any instruction given NEXION Networks or this SERVICE AGREEMENT by the Customer; or
6.2.2. arising from any breach of law, regulatory requirement or industry code by Customer or any Customer End User. The indemnity in this clause 7.2 does not apply in respect of any negligent or wilful acts or omissions on the part of a Customer End User while on any premises where NEXION Networks is providing Colocation Services.
6.3. Subject to the Customer’s rights in statute or the common law, the Customer must not make any claim against a Supplier in connection with this SERVICE AGREEMENT or the Services which would result in NEXION Networks becoming liable to that Supplier.
6.4. Subject to clause 11.6 NEXION Networks may set-off against any payments due to Customer, any amounts due from or payable by Customer under or in relation to:
6.4.1. this SERVICE AGREEMENT (including any clawbacks or any over-payments made by NEXION to Customer); or
6.4.2. any other agreement or arrangement between Customer and NEXION Networks
6.5. Any indemnity provided under this clause and relied on by a party being sued for loss or liability in connection with its obligations under this SERVICE AGREEMENT will be reduced proportionally to the to the extent that the relying party’s negligent act or omission or failure to comply with its obligations under this SERVICE AGREEMENT caused or contributed to the claim for the loss or liability.
7.1. In the event of a breach of a limited warranty under clause 5 or in the event a Fault occurs to a Service provided by NEXION Networks to the Customer in accordance with the relevant NEXION Networks Signed or Accepted Proposal, the Customer is required to report the breach or Fault, as the case may be, to NEXION. Notwithstanding any remedies the Customer may have at law, NEXION Networks liability shall be for NEXION Networks at its own expense and at the Customer’s option to either:
7.1.1. repair, replace or modify the affected Service; or
7.1.2. pay the cost for the Customer to repair, replace or modify the affected Colocation Service; or
7.1.3. pay Rebates in accordance with the NEXION Networks Signed or Accepted Proposal, to the Customer in relation to any failure by NEXION Networks in respect of the delivery and performance of the Services set out in the NEXION Networks Signed or Accepted Proposal or NEXION Networks failure to meet the relevant Service Levels set out in the NEXION Networks Signed or Accepted Proposal. The parties agree that Rebates represent a reasonable and genuine pre-estimate of the minimum anticipated or actual loss or damage which would be incurred by Customer as a result of a failure by NEXION Networks in respect of the delivery and performance of the Services or NEXION Networks failure to meet the relevant Service Levels. The parties want to avoid the difficulties of proof of damages and agree that the Rebates are reasonable and are not a penalty; or
7.2. Where the Customer elects for 8.1.2 to apply, the Customer must prior to the commencement of repairing, replacing or modifying the affected Colocation Service:
7.2.1. submit a detailed scope of works to NEXION Networks for written approval; and
7.2.2. submit a quote for the scope of works to NEXION Networks for written approval; and
7.2.3. use contractors approved by NEXION Networks and VENDOR in writing which will not be unreasonably withheld.
Except as expressly permitted or required by this SERVICE AGREEMENT, Customer NEXION Networks must not use any of the other’s Confidential Information for any purpose other than the performance of its obligations or exercise of its rights under this SERVICE AGREEMENT.
8.1. Except as expressly permitted or required by this SERVICE AGREEMENT, Customer and NEXION Networks must not disclose to any other person any of the other’s Confidential Information.
8.2. Customer and NEXION Networks may disclose the other’s Confidential Information:
8.2.1. if required to do so by law or any regulatory authority, to the extent so required; and
8.2.2. to its Personnel (including subcontractors) whose duties reasonably require such disclosure, on condition that the person making such disclosure:
18.104.22.168. ensures that each such person to whom such disclosure is made is informed of the confidentiality of the information and the obligations of confidentiality under this SERVICE AGREEMENT; and
22.214.171.124. ensures that each such person to whom such disclosure is made complies with those obligations as if they were bound by them.
8.3. Except in accordance with the provisions of clauses 9.2.1 or as otherwise required to perform the Services, Customer and NEXION Networks and VENDOR must not disclose the terms of this SERVICE AGREEMENT.
8.4. If Customer or NEXION Networks is required to disclose the other’s Confidential Information under clause 9.2.1 it must:
8.4.1. notify the other of the requirement to disclose as soon as is reasonably possible;
8.4.2. take all steps necessary to allow the other to challenge or limit the requirement to disclose using any available channel or in any forum, including a court of law;
8.4.3. provide the other with all assistance and co-operation reasonably requested by the other to assist it to challenge or limit the requirement to disclose; and
8.4.4. use its best endeavours to ensure that confidential treatment will be given to the Confidential Information by any person to whom it is required to be disclosed.
8.5. If Customer or NEXION Networks becomes aware of a breach of this clause 9, including a breach of duty of its personnel or Suppliers with respect to the other’s Confidential Information, it must:
8.5.1. notify the other as soon as it becomes aware of the breach;
8.5.2. promptly provide the other with any information or assistance which it may reasonably request to minimise the loss or damage it may suffer as a result of the breach; and
8.5.3. co-operate with the other in any investigation or litigation conducted by it to protect its rights in its Confidential Information.
8.6. Customer and NEXION Networks must establish and maintain effective security measures to prevent any unauthorised use or disclosure of, or unauthorised access, loss or damage to, any of the other’s Confidential Information under its possession or control.
8.7. Customer and NEXION Networks must at all times keep all materials containing the other’s Confidential Information separate from all other materials under its possession or control.
8.8. The provisions of this clause 9 survives termination or expiry of this SERVICE AGREEMENT for any reason whatsoever.
9. Term and Termination
9.1. This SERVICE AGREEMENT shall remain in effect for the Term unless terminated as provided in this section.
9.2. Termination of this SERVICE AGREEMENT or any NEXION Networks Signed or Accepted Proposal shall not limit either party from pursuing other remedies available to it, including injunctive relief.
9.3. Termination of an NEXION Networks Signed or Accepted Proposal shall not terminate this SERVICE AGREEMENT.
9.4. Upon expiration or termination of this SERVICE AGREEMENT or a license granted under this SERVICE AGREEMENT, Customer shall:
9.4.1. cease using the applicable Services, Intellectual Property Rights and related Confidential Information of NEXION Networks;
9.4.2. return or deliver to NEXION Networks a written certification signed by a corporate officer of Customer within thirty (30) days after termination that Customer has destroyed NEXION Networks and VENDOR ’s Documentation, related Confidential Information and all copies thereof, whether or not modified or merged into other materials.
9.5. Expiry or termination for any reason of this SERVICE AGREEMENT shall not have the effect of terminating all outstanding NEXION Networks Signed or Accepted Proposals. The parties agree that in the event the SERVICE AGREEMENT is terminated, due to expire or has expired and there are NEXION Networks Signed or Accepted Proposals outstanding, NEXION Networks will continue to provide the Services under the same terms as this SERVICE AGREEMENT until the expiry of the term of the last outstanding NEXION Networks Signed or Accepted Proposal.
10.1. Intellectual Property Rights. The parties agree that all rights or title to or interest in all Intellectual Property which is created prior to or independent of the SERVICE AGREEMENT or an NEXION Networks Signed or Accepted Proposal shall remain the sole and exclusive property of NEXION Networks or the Customer as the case may be unless expressly provided in the NEXION Networks Signed or Accepted Proposal. Any Intellectual Property developed during the performance of Services (“Property”), and all worldwide Intellectual Property Rights therein are the exclusive property of NEXION Networks and its Suppliers. All rights in and to the Property not expressly granted to Customer in an NEXION Networks Signed or Accepted Proposal are reserved by NEXION and its Suppliers. Nothing in an NEXION Networks Signed or Accepted Proposal will be deemed to grant, by implication, estoppel or otherwise, a license under any of NEXION Networks existing or future Intellectual Property. The Customer will not remove, alter, or obscure, any proprietary notices (including copyright notices) of NEXION and VENDOR or its Suppliers on the Property.
10.2. Compliance with Laws. Customer will comply with all applicable law including export and import control laws and regulations in its use of the Property and, in particular, Customer will not export or re-export the Property without all required government licenses and Customer agrees to comply with the export laws, restrictions, national security controls and regulations of all applicable foreign agencies or authorities. Customer will defend, indemnify, and hold harmless NEXION Networks from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
10.3. Force Majeure. Neither party shall be liable for any delays in performance of any of the obligations hereunder due to causes beyond its reasonable control including, without limitation, fire, strike, war, acts of terrorism, riots, acts of any civil or military authority, acts of God, computer viruses, internet failures, judicial action, unavailability or shortages of labour, materials or equipment, failure or delays in delivery of NEXION Networks and suppliers or delays in transportation.
10.4. Assignment. No SERVICE AGREEMENT nor any rights, duties, or obligations set forth in any SERVICE AGREEMENT , may be assigned, encumbered, mortgaged, assumed, or otherwise transferred by Customer, in whole or in part, whether directly or by operation of law, including by way of sale of assets, merger or consolidation, or a transaction that results in the equity owners of Customer before the transaction owning less that a majority of the outstanding equity of Customer following the transaction (which shall be considered an assignment hereunder), without the prior written consent of NEXION Networks , and any attempt to do so without the express prior written consent (which consent shall be in its sole discretion) shall be deemed a material breach of the SERVICE AGREEMENT (s) which is incapable of being remedied and shall automatically terminate all other rights granted to Customer thereunder. Subject to the foregoing, each SERVICE AGREEMENT will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
10.5. Notices. All notices, consents, and approvals under any SERVICE AGREEMENT must be delivered in writing by courier or by certified or registered mail (postage prepaid and return recipient requested) to the other party at the address set forth on the cover page of this SERVICE AGREEMENT unless otherwise directed in the relevant SERVICE AGREEMENT, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving written notice of the new address to the other party.
10.6. Dispute Resolution. Upon any dispute, controversy or claim between the parties, relating in any way to a SERVICE AGREEMENT, (except as it relates to a confidentiality violation or an Intellectual Property Right), each of the parties will designate a representative from the senior management, who (to the extent practicable) does not devote substantially all of his or her time to performance under the relevant SERVICE AGREEMENT, to attempt to resolve such a matter. The designated representatives will negotiate in good faith in an effort to resolve dispute over a period of thirty (90) days. If the dispute is not resolved in this 90-day period the parties shall submit the matter to binding arbitration in Perth, Western Australia in accordance with the Commercial Arbitration Act 2010 (WA), by a single arbitrator, independent of both parties, who is skilled in the legal and business aspects of the IT industry. However, if there is a dispute regarding Intellectual Property Rights or a confidentiality violation, the dispute shall be resolved with regard to Western Australian and Australian Commonwealth laws in the courts of Perth, Western Australia.
10.7. Governing Law and Venue. The SERVICE AGREEMENT and any claims related to them will be governed by the laws of jurisdiction of Western Australia and, regarding Intellectual Property Rights or confidentiality, by Australian Commonwealth laws; such as laws that apply to contracts between residents of that state performed entirely within such state. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any SERVICE AGREEMENT. Any dispute action or dispute proceeding arising from or relating to any SERVICE AGREEMENT must be brought in Perth, Western Australia. In the event of a court action or civil proceeding arising from or relating to any SERVICE AGREEMENT each party irrevocably submits to the jurisdiction and venue of the courts of Perth, Western Australia as the venue for any such action or proceeding.
10.8. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of any SERVICE AGREEMENT on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.9. Entire Agreement. This SERVICE AGREEMENT and any relevant NEXION Networks Signed or Accepted Proposal shall jointly form the SERVICE AGREEMENT which is the complete agreement between the parties regarding subject matter of this SERVICE AGREEMENT and the NEXION Networks Signed or Accepted Proposal and replace any prior oral or written communications between the parties related to the SERVICE AGREEMENT.
10.10. Independent Contractor. In all matters relating to any SERVICE AGREEMENT, NEXION Networks will act as an independent contractor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, in conjunction with the other party.
10.11. Severability. If any provision of any SERVICE AGREEMENT is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing.
10.12. Counterparts. This SERVICE AGREEMENT and any NEXION Networks Signed or Accepted Proposal may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
11. Billing & Payments
11.1.1. NEXION Networks may bill the Customer for:
a) recurring or fixed charges in advance;
b) variable charges, in arrears, including but not limited to excess usage charges;
c) installation or set-up charges, before installation occurs;
d) any equipment the Customer purchases from us, on or after delivery; or
e) for any charges defined in the proposal.
11.1.2. NEXION Networks will bill the Customer in accordance with the billing period described in the Service Description.
11.1.3. We will provide the Customer with reasonable information on the Customer’s use of our services via the NEXION Networks website.
11.1.4. Bills will be calculated by reference to data recorded, logged or received by our systems and our Suppliers and the Customer acknowledges that in calculating charges we need only look at that data as logged or received by NEXION Networks or our Suppliers.
11.1.5. Bills may include charges from previous billing periods where these have not been remitted.
11.1.6. We may reissue any invoice if any error is discovered. If the Customer has overpaid as a result of a billing error, the Customer’s account will be credited with the overpayment or, if the Customer has stopped acquiring the Service from NEXION Networks we will refund the overpayment within twenty (20) Business Days.
11.1.7. Subject to clause 11.2.1, the Customer must pay each amount billed by the due date specified in the bill and in the manner specified in the Service Description or the proposal.
11.1.8. Bills and receipts will be available in an electronic document format and distributed to the Customer via email.
11.2. Billing Disputes
11.2.1. Where the Customer disputes the invoice issued by NEXION Networks please provide a written notice to us within ten (10) days of the issue date. The Customer will need to specify:
a) The specific line items in dispute; and
b) Reasons for disputing each of the charges.
11.2.2. The Customer will still be required to pay the undisputed amount by the due date detailed on the Invoice.
11.2.3. We will assess the validity and value of the Customer’s billing dispute claims and provide a written response within five (5) Business Days.
11.2.4. Where a billing dispute is found to be in our favour the Customer will be required to pay the outstanding amounts by the invoice due date. Where the invoice due date has passed, the Customer will be obliged to pay all outstanding monies within two Business Days upon receipt of the notice of the billing dispute assessment.
11.2.5. Where a billing dispute is found to be in the Customer’s favour we will credit assessed billing dispute value on the applicable invoice within two Business Days upon dispatch of the notice of the billing dispute assessment.
11.3.1. The Customer is responsible for and must pay for all use of the Service, even unauthorised use.
11.3.2. We reserve the right to charge the Customer all fees specified in this Agreement, unless otherwise agreed in writing by the Customer and NEXION Networks.
11.3.3. The Customer may elect to have bills paid by way of:
a) A direct debit from an account held by the Customer at an approved financial institution;
b) An accepted credit card (Visa, MasterCard); or
c) Direct deposit.
11.3.4. Accepted payment types vary for each Service. Please see the Service Description for accepted payment types for each Good and Service.
11.3.5. NEXION Networks will send the Customer a Tax Invoice for Services on a calendar monthly basis or unless otherwise agreed in writing between the Customer and NEXION Networks.
11.3.6. If the payment type is credit card or direct debit the Customer is responsible for ensuring there are sufficient funds available in their nominated credit
card or direct debit account at any time we bill the account.
11.3.7. Dishonour fees and any other charges, expenses or losses resulting from NEXION Networks attempting to debit the credit card or direct debit account will be borne solely by the Customer.
11.3.8. The Customer authorises NEXION Networks to charge any excess usage of their account at the rate detailed in the proposal.
11.3.9.Where the Customer provides a credit card for payment of reoccurring Services, the Customer authorises NEXION Networks to debit this card for the fees and on a frequency as set out in the proposal.
11.3.10. NEXION Networks will notify the Customer by email, then by phone if the Customer’s credit card is due to expire in the next billing period.
11.3.11. In addition to fees and charges the Customer incurs in the normal use the Service, we may charge the Customer an administration fee which may include cancellation fees, relocation fees and/or payment dishonour fees.
11.3.12. Direct Debit rejections incur a $20.00 inc. GST charge.
11.3.13. All administration, registration and set-up fees are non-refundable.
11.3.14. We reserve the right to suspend or terminate the Customer’s Service without notice upon rejection of any card or direct debit charges or if the Customer’s card issuer (or its agent or affiliate) seeks return of payments previously made to NEXION Networks when we believe the Customer is liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to NEXION Networks.
11.3.15. Arrearages. Payments not made within ten (10) days of invoicing will be deemed in arrears. For accounts in arrears, if any amount is more than ten (10) days overdue, without the requirement of providing notice of such arrears, NEXION Networks may suspend service to such account and bring legal action to collect the full amount due, including any attorneys’ fees and costs.
11.3.16. Suspension for Nonpayment. If a Customer is past due on their balance, NEXION Networks may send up to three (3) email notifications within a fifteen (15) day period before suspending the Customer’s account. Servers will be temporarily powered off during the suspension period. NEXION Networks reserves the right to delete the Subscriber’s suspended machines after the final termination notice.
12. Refund & Return Policy
12.1.1. The Customer may request a refund of monies paid within the first seven days of the original date of purchase of a new Service. This is referred to as
the “cooling off period”.
12.1.1. Setup or once-off charges are not refundable.
12.1.1. Monies paid after the cooling off period are not refundable.
12.1.1. If the Customer validly terminates this Agreement as a result of our breach, the Customer’s only remedy will be:
a) In respect of Services, a refund for the services for which the Customer has paid in advance but which have not been supplied by us, calculated at the applicable daily rate; and/or
b) In respect of Goods, possession of the Goods.
c) Payment of Service Level Rebates described in the Service Schedule.
12.2 . Returns
12.2.1. Any items returned within 30 days of the date of purchase will incur a minimum of 15% restocking fee, including all fees and charges. Restocking fee must be paid in full prior to acceptance of restocking of items, failure to inform NEXION Networks Pty Ltd in writing within 30 days of purchase, will prevent any restock of any licences or hardware.
Your acceptance of these Terms and Conditions:
By providing a signed Proposal or clicking on the icon marked “Accept” you confirm that you:
- have the capacity to enter into a legally binding contract;
- accept and agree to be bound by these Terms and Conditions.
For any questions, please contact us at:
NEXION Networks Pty Ltd
ABN: 11 617 824 923